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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/3799-h.zip b/3799-h.zip Binary files differnew file mode 100644 index 0000000..e71550f --- /dev/null +++ b/3799-h.zip diff --git a/3799-h/3799-h.htm b/3799-h/3799-h.htm new file mode 100644 index 0000000..17fbe78 --- /dev/null +++ b/3799-h/3799-h.htm @@ -0,0 +1,4265 @@ +<?xml version="1.0" encoding="us-ascii"?> + +<!DOCTYPE html + PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd" > + +<html xmlns="http://www.w3.org/1999/xhtml" lang="en"> + <head> + <title> + The History of Landholding in England By Joseph Fisher + </title> + <style type="text/css" xml:space="preserve"> + + body { margin:5%; background:#faebd0; text-align:justify} + P { text-indent: 1em; margin-top: .25em; margin-bottom: .25em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + .foot { margin-left: 20%; margin-right: 20%; text-align: justify; text-indent: -3em; font-size: 90%; } + blockquote {font-size: 97%; font-style: italic; margin-left: 10%; margin-right: 10%;} + .mynote {background-color: #DDE; color: #000; padding: .5em; margin-left: 10%; margin-right: 10%; font-family: sans-serif; font-size: 95%;} + .toc { margin-left: 10%; margin-bottom: .75em;} + .toc2 { margin-left: 20%;} + div.fig { display:block; margin:0 auto; text-align:center; } + div.middle { margin-left: 20%; margin-right: 20%; text-align: justify; } + .figleft {float: left; margin-left: 0%; margin-right: 1%;} + .figright {float: right; margin-right: 0%; margin-left: 1%;} + .pagenum {display:inline; font-size: 70%; font-style:normal; + margin: 0; padding: 0; position: absolute; right: 1%; + text-align: right;} + pre { font-style: italic; font-size: 90%; margin-left: 10%;} + +</style> + </head> + <body> +<pre xml:space="preserve"> + +The Project Gutenberg EBook of Landholding In England, by Joseph Fisher + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Landholding In England + +Author: Joseph Fisher + +Release Date: January 8, 2010 [EBook #3799] +Last Updated: January 26, 2013 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK LANDHOLDING IN ENGLAND *** + + + + +Produced by Charles Franks, Robert Rowe, David Widger, +and the Online Distributed Proofreading Team + + + + + + +</pre> + <p> + <br /><br /> + </p> + <h1> + THE HISTORY OF LANDHOLDING IN ENGLAND. + </h1> + <p> + <br /> + </p> + <h2> + By Joseph Fisher, F.R.H.S. + </h2> + <p> + <br /><br /> + </p> +<pre xml:space="preserve"> + "Much food is in the tillage of the poor, but there is that + which is destroyed for want of Judgment."—PROV. 13: 23. + + "Of all arts, tillage or agriculture is doubtless the most + useful and necessary, as being the source whence the nation + derives its subsistence. The cultivation of the soil causes + it to produce an infinite increase. It forms the surest + resource and the most solid fund of riches and commerce for + a nation that enjoys a happy climate.... The cultivation of + the soil deserves the attention of the Government, not only + on account of the invaluable advantages that flow from it, + but from its being an obligation imposed by nature on + mankind."—VATTEL. +</pre> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + Contents + </h2> + <p> + <a href="#link2H_INTR"> INTRODUCTION. </a> + </p> + <table summary="" style="margin-right: auto; margin-left: auto"> + <tr> + <td> + <p class="toc"> + <a href="#link2H_4_0002"> I. THE ABORIGINES. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0003"> II. THE ROMAN. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0004"> III. THE SCANDINAVIANS. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0005"> IV. THE NORMANS. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0006"> V. THE PLANTAGENETS. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0007"> VI. THE TUDORS </a> + </p> + <p class="toc"> + <a href="#link2H_4_0008"> VII. THE STUARTS. </a> + </p> + <p class="toc"> + <a href="#link2H_4_0009"> VIII. THE HOUSE OF HANOVER. </a> + </p> + </td> + </tr> + </table> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> <a name="link2H_INTR" id="link2H_INTR"> + <!-- H2 anchor --> </a> + </p> + <h2> + INTRODUCTION. + </h2> + <p> + This work is an expansion of a paper read at the meeting of the Royal + Historical Society in May, 1875, and will be published in the volume of + the Transactions of that body. But as it is an expensive work, and only + accessible to the Fellows of that Society, and as the subject is one which + is now engaging a good deal of public consideration, I have thought it + desirable to place it within the reach of those who may not have access to + the larger and more expensive work. + </p> + <p> + I am aware that much might be added to the information it contains, and I + possess materials which would have more than doubled its size, but I have + endeavored to seize upon the salient points, and to express my views as + concisely as possible. + </p> + <p> + I have also preferred giving the exact words of important Acts of + Parliament to any description of their objects. + </p> + <p> + If this little essay adds any information upon a subject of much public + interest, and contributes to the just settlement of a very important + question, I shall consider my labor has not been in vain. + </p> + <p> + JOSEPH FISHER. + </p> + <p> + WATERFORD, November 3, 1875. + </p> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <p> + I do not propose to enter upon the system of landholding in Scotland or + Ireland, which appears to me to bear the stamp of the Celtic origin of the + people, and which was preserved in Ireland long after it had disappeared + in other European countries formerly inhabited by the Celts. That ancient + race may be regarded as the original settlers of a large portion of the + European continent, and its land system possesses a remarkable affinity to + that of the Slavonic, the Hindoo, and even the New Zealand races. It was + originally Patriarchal, and then Tribal, and was communistic in its + character. + </p> + <p> + I do not pretend to great originality in my views. My efforts have been to + collect the scattered rays of light, and to bring them to bear upon one + interesting topic. The present is the child of the past. The ideas of + bygone races affect the practices of living people. We form but parts of a + whole; we are influenced by those who preceded us, and we shall influence + those who come after us. Men cannot disassociate themselves either from + the past or the future. + </p> + <p> + In looking at this question there is, I think, a vast difference which has + not been sufficiently recognized. It is the broad distinction between the + system arising out of the original occupation of land, and that proceeding + out of the necessities of conquest; perhaps I should add a third—the + complex system proceeding from an amalgamation, or from the existence of + both systems in the same nation. Some countries have been so repeatedly + swept over by the tide of conquest that but little of the aboriginal ideas + or systems have survived the flood. Others have submitted to a change of + governors and preserved their customary laws; while in some there has been + such a fusion of the two systems that we cannot decide which of the + ingredients was the older, except by a process of analysis and a + comparison of the several products of the alembic with the recognized + institutions of the class of original or of invading peoples. + </p> + <p> + Efforts have been made, and not with very great success, to define the + principle which governed the more ancient races with regard to the + possession of land. While unoccupied or unappropriated, it was common to + every settler. It existed for the use of the whole human race. The process + by which that which was common to all became the possession of the + individual has not been clearly stated. The earlier settlers were either + individuals, families, tribes, or nations. In some cases they were + nomadic, and used the natural products without taking possession of the + land; in others they occupied districts differently defined. The + individual was the unit of the family, the patriarch of the tribe. The + commune was formed to afford mutual protection. Each sept or tribe in the + early enjoyment of the products of the district it selected was governed + by its own customary laws. The cohesion of these tribes into states was a + slow process; the adoption of a general system of government still slower. + The disintegration of the tribal system, and dissolution of the commune, + was not evolved out of the original elements of the system itself, but was + the effect of conquest; and, as far as I can discover, the appropriation + to individuals of land which was common to all, was mainly brought about + by conquest, and was guided by impulse rather than regulated by principle. + </p> + <p> + Mr. Locke thinks that an individual became sole owner of a part of the + common heritage by mixing his labor with the land, in fencing it, making + wells, or building; and he illustrates his position by the appropriation + of wild animals, which are common to all sportsmen, but become the + property of him who captures or kills them. This acute thinker seems to me + to have fallen into a mistake by confounding land with labor. The + improvements were the property of the man who made them, but it by no + means follows that the expenditure of labor on land gave any greater right + than to the labor itself or its representative. + </p> + <p> + It may not be out of place here to allude to the use of the word property + with reference to land; property—from proprium, my own—is + something pertaining to man. I have a property in myself. I have the right + to be free. All that proceeds from myself, my thoughts, my writings, my + works, are property; but no man made land, and therefore it is not + property. This incorrect application of the word is the more striking in + England, where the largest title a man can have is "tenancy in fee," and a + tenant holds but does not own. + </p> + <p> + Sir William Blackstone places the possession of land upon a different + principle. He says that, as society became formed, its instinct was to + preserve the peace; and as a man who had taken possession of land could + not be disturbed without using force, each man continued to enjoy the use + of that which he had taken out of the common stock; but, he adds, that + right only lasted as long as the man lived. Death put him out of + possession, and he could not give to another that which he ceased to + possess himself. + </p> + <p> + Vattel (book i., chap, vii.) tells us that "the whole earth is destined to + feed its inhabitants; but this it would be incapable of doing if it were + uncultivated. Every nation is then obliged by the law of nature to + cultivate the land that has fallen to its share, and it has no right to + enlarge its boundaries or have recourse to the assistance of other + nations, but in proportion as the land in its possession is incapable of + furnishing it with necessaries." He adds (chap. xx.), "When a nation in a + body takes possession of a country, everything that is not divided among + its members remains common to the whole nation, and is called public + property." + </p> + <p> + An ancient Irish tract, which forms part of the Senchus Mor, and is + supposed to be a portion of the Brehon code, and traceable to the time of + St. Patrick, speaks of land in a poetically symbolic, but actually + realistic manner, and says, "Land is perpetual man." All the ingredients + of our physical frame come from the soil. The food we require and enjoy, + the clothing which enwraps us, the fire which warms us, all save the vital + spark that constitutes life, is of the land, hence it is "perpetual man." + Selden ("Titles of Honor," p. 27), when treating of the title "King of + Kings," refers to the eastern custom of homage, which consisted not in + offering the person, but the elements which composed the person, EARTH and + WATER—"the perpetual man" of the Brehons—to the conqueror. He + says: + </p> + <p> + "So that both titles, those of King of Kings and Great King, were common + to those emperors of the two first empires; as also (if we believe the + story of Judith) that ceremonies of receiving an acknowledgment of regal + supremacy (which, by the way, I note here, because it was as homage + received by kings in that time from such princes or people as should + acknowledge themselves under their subjection) by acceptance upon their + demand of EARTH and WATER. This demand is often spoken of as used by the + Persian, and a special example of it is in Darius' letters to Induthyr, + King of the Scythians, when he first invites him to the field; but if he + would not, then bringing to your sovereign as gifts earth and water, come + to a parley. And one of Xerxes' ambassadors that came to demand earth and + water from the state of Lacedaemon, to satisfy him, was thrust into a well + and earth cast upon him." + </p> + <p> + The earlier races seem to me, either by reasoning or by instinct, to have + arrived at the conclusion that every man was, in right of his being, + entitled to food; that food was a product of the land, and therefore every + man was entitled to the possession of land, otherwise his life depended + upon the will of another. The Romans acted on a different principle, which + was "the spoil to the victors." He who could not defend and retain his + possessions became the slave of the conqueror, all the rights of the + vanquished passed to the victor, who took and enjoyed as ample rights to + land as those naturally possessed by the aborigines. + </p> + <p> + The system of landholding varies in different countries, and we cannot + discover any idea of abstract right underlying the various differing + systems; they are the outcome of law, the will of the sovereign power, + which is liable to change with circumstances. The word LAW appears to be + used to express two distinct sentiments; one, the will of the sovereign + power, which being accompanied with a penalty, bears on its face the idea + that it may be broken by the individual who pays the penalty: "Thou shalt + not eat of the fruit of the tree, for on the day thou eatest thereof thou + shalt die," was a law. All laws, whether emanating from an absolute + monarch or from the representatives of the majority of a state, are mere + expressions of the will of the sovereign power, which may be exacted by + force. The second use of the word LAW is a record of our experience—e.g., + we see the tides ebb and flow, and conclude it is done in obedience to the + will of a sovereign power; but the word in that sense does not imply any + violation or any punishment. A distinction must also be drawn between laws + and codes; the former existed before the latter. The lex non scripta + prevailed before letters were invented. Every command of the Decalogue was + issued, and punishment followed for its breach, before the existence of + the engraved tables. The Brehon code, the Justinian code, the Draconian + code, were compilations of existing laws; and the same may be said of the + common or customary law of England, of France, and of Germany. + </p> + <p> + I am aware that recent analytical writers have sought to associate LAW + with FORCE, and to hold that law is a command, and must have behind it + sufficient force to compel submission. These writers find at the outset of + their examination, that customary law, the "Lex non scripta," existed + before force, and that the nomination to sovereign power was the outcome + of the more ancient customary law. These laws appear based upon the idea + of common good, and to have been supported by the "posse comitatus" before + standing armies or state constabularies were formed. Vattel says (book i., + chap. ii.), "It is evident that men form a political society, and submit + to laws solely for their own advantage and safety. The sovereign authority + is then established only for the common good of all the citizens. The + sovereign thus clothed with the public authority, with everything that + constitutes the moral personality of the nation, of course becomes bound + by the moral obligations of that nation and invested with its rights." It + appears evident, that customary law was the will of small communities, + when they were sovereign; that the cohesion of such communities was a + confirmation of such customs of each, that the election of a monarch or a + parliament was a recognition of these customs, and that the moral and + material FORCE or power of the sovereign was the outcome of existing laws, + and a confirmation thereof. The application of the united force of the + nation could be rightfully directed to the requirements of ancient, though + unwritten customary law, and it could only be displaced by legislation, in + which those concerned took part. + </p> + <p> + The duty of the sovereign (which in the United Kingdom means the Crown and + the two branches of the legislature) with regard to land, is thus + described by Vattel: + </p> + <p> + "Of all arts, tillage or agriculture is doubtless the most useful and + necessary, as being the source whence the nation derives its subsistence. + The cultivation of the soil causes it to produce an infinite increase. It + forms the surest resource, and the most solid fund of riches and commerce + for a nation that enjoys a happy climate. The sovereign ought to neglect + no means of rendering the land under his jurisdiction as well cultivated + as possible.... Notwithstanding the introduction of private property among + the citizens, the nation has still the right to take the most effectual + measures to cause the aggregate soil of the country to produce the + greatest and most advantageous revenue possible. The cultivation of the + soil deserves the attention of the Government, not only on account of the + invaluable advantages that flow from it, but from its being an obligation + imposed by nature on mankind." + </p> + <p> + Sir Henry Maine thinks that there are traces in England of the commune or + MARK system in the village communities which are believed to have existed, + but these traces are very faint. The subsequent changes were inherent in, + and developed by, the various conquests that swept over England; even that + ancient class of holdings called "Borough English," are a development of a + war-like system, under which each son, as he came to manhood, entered upon + the wars, and left the patrimonial lands to the youngest son. The system + of gavel-kind which prevailed in the kingdom of Kent, survived the + accession of William of Normandy, and was partially effaced in the reign + of Henry VII. It was not the aboriginal or communistic system, but one of + its many successors. + </p> + <p> + The various systems may have run one into the other, but I think there are + sufficiently distinct features to place them in the following order: + </p> + <p> + 1st. The Aboriginal. + </p> + <p> + 2d. The Roman, Population about 1,500,000. + </p> + <p> + 3d. The Scandinavian under the ANGLO-SAXON and Danish kings—A.D. 450 + to A.D. 1066. The population in 1066 was 2,150,000. + </p> + <p> + 4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the latter + year was 3,350,000. + </p> + <p> + 5th. The Plantagenet, from 1154 to 1485; in the latter the population was + 4,000,000. + </p> + <p> + 6th. The Tudor, 1485 to 1603, when the population was 5,000,000. + </p> + <p> + 7th. The Stuarts, 1603 to 1714, the population having risen to 5,750,000. + </p> + <p> + 8th. The Present, from 1714. Down to 1820 the soil supported the + population; now about one half lives upon food produced in other + countries. In 1874 the population was 23,648,607. + </p> + <p> + Each of these periods has its own characteristic, but as I must compress + my remarks, you must excuse my passing rapidly from one to the other. + </p> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> <a name="link2H_4_0002" id="link2H_4_0002"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + I. THE ABORIGINES. + </h2> + <p> + The aboriginal period is wrapped in darkness, and I cannot with certainty + say whether the system that prevailed was Celtic and Tribal. An old French + customary, in a MS. treating upon the antiquity of tenures, says: "The + first English king divided the land into four parts. He gave one part to + the ARCH FLAMENS to pray for him and his posterity. A second part he gave + to the earls and nobility, to do him knight's service. A third part he + divided among husbandmen, to hold of him in socage. The fourth he gave to + mechanical persons to hold in burgage." The terms used apply to a much + more recent period and more modern ideas. + </p> + <p> + Caesar tells us "that the island of Britain abounds in cattle, and the + greatest part of those within the country never sow their land, but live + on flesh and milk. The sea-coasts are inhabited by colonies from Belgium, + which, having established themselves in Britain, began to cultivate the + soil." + </p> + <p> + Diodorus Siculus says, "The Britons, when they have reaped their corn, by + cutting the ears from the stubble, lay them up for preservation in + subterranean caves or granaries. From thence, they say, in very ancient + times, they used to take a certain quantity of ears out every day, and + having dried and bruised the grains, made a kind of food for their + immediate use." + </p> + <p> + Jeffrey of Monmouth relates that one of the laws of Dunwalls Molnutus, who + is said to have reigned B.C. 500, enacted that the ploughs of the + husbandmen, as well as the temples of the gods, should be sanctuaries to + such criminals as fled to them for protection. + </p> + <p> + Tacitus states that the Britons were not a free people, but were under + subjection to many different kings. + </p> + <p> + Dr. Henry, quoting Tacitus, says, "In the ancient German and British + nation the whole riches of the people consisted in their flocks and herds; + the laws of succession were few and simple: a man's cattle, at death, were + equally divided among his sons; or, if he had no sons, his daughters; or + if he had no children, among his nearest relations. These nations seem to + have had no idea of the rights of primogeniture, or that the eldest son + had any title to a larger share of his father's effects than the + youngest." + </p> + <p> + The population of England was scanty, and did not probably exceed a + million of inhabitants. They were split up into a vast number of petty + chieftainries or kingdoms; there was no cohesion, no means of + communication between them; there was no sovereign power which could call + out and combine the whole strength of the nation. No single chieftain + could oppose to the Romans a greater force than that of one of its + legions, and when a footing was obtained in the island, the war became one + of detail; it was a provincial rather that a national contest. The brave, + though untrained and ill-disciplined warriors, fell before the Romans, + just as the Red Man of North America was vanquished by the English + settlers. + </p> + <p> + <a name="link2H_4_0003" id="link2H_4_0003"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + II. THE ROMAN. + </h2> + <p> + The Romans acted with regard to all conquered nations upon the maxim, "To + the victors the spoils." Britain was no exception. The Romans were the + first to discover or create an ESTATE OF USES in land, as distinct from an + estate of possession. The more ancient nations, the Jews and the Greeks, + never recognized THE ESTATE OF USES, though there is some indication of it + in the relation established by Joseph in Egypt, when, during the years of + famine, he purchased for Pharaoh the lands of the people. The Romans + having seized upon lands in Italy belonging to conquered nations, + considered them public lands, and rented them to the soldiery, thus + retaining for the state the estate in the lands, but giving the occupier + an estate of uses. The rent of these public lands was fixed at one tenth + of the produce, and this was termed USUFRUCT—the use of the fruits. + </p> + <p> + The British chiefs, who submitted to the Romans, were subjected to a + tribute or rent in corn; it varied, according to circumstances, from one + fifth to one twentieth of the produce. The grower was bound to deliver it + at the prescribed places. This was felt to be a great hardship, as they + were often obliged to carry the grain great distances, or pay a bribe to + be excused. This oppressive law was altered by Julius Agricola. + </p> + <p> + The Romans patronized agriculture—Cato says, "When the Romans + designed to bestow the highest praise on a good man, they used to say he + understood agriculture well, and is an excellent husbandman, for this was + esteemed the greatest and most honorable character." Their system produced + a great alteration in Britain, and converted it into the most plentiful + province of the empire; it produced sufficient corn for its own + inhabitants, for the Roman legions, and also afforded a great surplus, + which was sent up the Rhine. The Emperor Julian built new granaries in + Germany, in which he stored the corn brought from Britain. Agriculture had + greatly improved in England under the Romans. + </p> + <p> + The Romans do not appear to have established in England any military + tenures of land, such as those they created along the Danube and the + Rhine; nor do they appear to have taken possession of the land; the tax + they imposed upon it, though paid in kind, was more of the nature of a + tribute than a rent. Though some of the best of the soldiers in the Roman + legions were Britons, yet their rule completely enervated the aboriginal + inhabitants—they were left without leaders, without cohesion. Their + land was held by permission of the conquerors. The wall erected at so much + labor in the north of England proved a less effectual barrier against the + incursions of the Picts and Scots than the living barrier of armed men + which, at a later period, successfully repelled their invasions. The Roman + rule affords another example that material prosperity cannot secure the + liberties of a people, that they must be armed and prepared to repel by + force any aggression upon their liberty or their estates. + </p> + <p> + "Who will be free, themselves must strike the blow." + </p> + <p> + The prosperous "Britons," who were left by the Romans in possession of the + island, were but feeble representatives of those who, under Caractacus and + Boadicea, did not shrink from combat with the legions of Caesar. Uninured + to arms, and accustomed to obedience, they looked for a fresh master, and + sunk into servitude and serfdom, from which they never emerged. Yet under + the Romans they had thriven and increased in material wealth; the island + abounded in numerous flocks and herds; and agriculture, which was + encouraged by the Romans, flourished. This wealth was by one of the + temptations to the invaders, who seized not only upon the movable wealth + of the natives, but also upon the land, and divided it among themselves. + </p> + <p> + The warlike portion of the aboriginal inhabitants appear to have joined + the Cymri and retired westward. Their system of landholding was + non-feudal, inasmuch as each man's land was divided among all his sons. + One of the laws of Hoel Dha, King of Wales in the tenth century, decreed + "that the youngest son shall have an equal share of the estate with the + eldest son, and that when the brothers have divided their father's estate + among them, the youngest son shall have the best house with all the office + houses; the implements of husbandry, his father's kettle, his axe for + cutting wood, and his knife; these three last things the father cannot + give away by gift, nor leave by his last will to any but his youngest son, + and if they are pledged they shall be redeemed." It may not be out of + place here to say that this custom continued to exist in Wales; and on its + conquest Edward I. ordained, "Whereas the custom is otherwise in Wales + than England concerning succession to an inheritance, inasmuch as the + inheritance is partible among the heirs-male, and from time whereof the + memory of man is not to the contrary hath been partible, Our Lord the King + will not have such custom abrogated, but willeth that inheritance shall + remain partible among like heirs as it was wont to be, with this exception + that bastards shall from henceforth not inherit, and also have portions + with the lawful heirs; and if it shall happen that any inheritance should + hereafter, upon failure of heirs-male, descend to females, the lawful + heirs of their ancestors last served thereof. We will, of our especial + grace, that the same women shall have their portions thereof, although + this be contrary to the custom of Wales before used." + </p> + <p> + The land system of Wales, so recognized and regulated by Edward I., + remained unchanged until the reign of the first Tudor monarch. Its + existence raises the presumption that the aboriginal system of landholding + in England gave each son a share of his father's land, and if so, it did + not correspond with the Germanic system described by Caesar, nor with the + tribal system of the Celts in Ireland, nor with the feudal system + subsequently introduced. + </p> + <p> + The polity of the Romans, which endured in Gaul, Spain, and Italy, and + tinged the laws and usages of these countries after they had been occupied + by the Goths, totally disappeared in England; and even Christianity, which + partially prevailed under the Romans, was submerged beneath the flood of + invasion. Save the material evidence of the footprints of "the masters of + the world" in the Roman roads, Roman wall, and some other structures, + there is no trace of the Romans in England. Their polity, laws, and + language alike vanished, and did not reappear for centuries, when their + laws and language were reimported. + </p> + <p> + I should not be disposed to estimate the population of England and Wales, + at the retirement of the Romans, at more than 1,500,000. They were like a + flock of sheep without masters, and, deprived of the watch-dogs which + over-awed and protected them, fell an easy prey to the invaders. + </p> + <p> + <a name="link2H_4_0004" id="link2H_4_0004"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + III. THE SCANDINAVIANS. + </h2> + <p> + The Roman legions and the outlying semi-military settlements along the + Rhine and the Danube, forming a cordon reaching from the German Ocean to + the Black Sea, kept back the tide of barbarians, but the volume of force + accumulated behind the barrier, and at length it poured in an overwhelming + and destructive tide over the fair and fertile provinces whose weak and + effeminate people offered but a feeble resistance to the robust armies of + the north. The Romans, under the instruction of Caesar and Tacitus, had a + faint idea of the usages of the people inhabiting the verge that lay + around the Roman dominions, but they had no knowledge of the influences + that prevailed in "the womb of nations," as Central Europe appeared to the + Latins, who saw emerging therefrom hosts of warriors, bearing with them + their wives, their children, and their portable effects, determined to win + a settlement amid the fertile regions owned and improved by the Romans. + </p> + <p> + These incursions were not colonization in the sense in which Rome + understood it; they were the migrations of a people, and were as full, as + complete, and as extensive as the Israelitish invasion of Canaan—they + were more destructive of property, but less fatal to life. These migratory + hosts left a desert behind them, and they either gained a settlement or + perished. The Roman colonies preserved their connection with the parent + stem, and invoked aid when in need; but the barbarian hosts had no home, + no reserves. Other races, moving with similar intent, settled on the land + they had vacated. These brought their own social arrangements, and it is + very difficult to connect the land system established by the aborigines + with the system which, after a lapse of some hundreds of years, was found + to prevail in another tribe or nation which had occupied the region that + had been vacated. + </p> + <p> + Neither Caesar nor Tacitus gives us any idea of the habits or usages of + the people who lived north of the Belgae. They had no notion of + Scandinavia nor of Sclavonia. The Walhalla of the north, with its terrific + deities, was unknown to them; and I am disposed to think that we shall + look in vain among the customs of the Teutons for the basis from whence + came the polity established in England by the invaders of the fifth + century. The ANGLO-SAXONs came from a region north of the Elbe, which we + call Schleswig—Holstein. They were kindred to the Norwegians and the + Danes, and of the family of the sea robbers; they were not Teutons, for + the Teutons were not and are not sailors. The Belgae colonized part of the + coast—i.e., the settlers maintained a connection with the mainland; + but the Angles, the Saxons, and the Jutes did not colonize, they migrated; + they left no trace of their occupancy in the lands they vacated. Each + separate invasion was the settlement of a district; each leader aspired to + sovereignty, and was supreme in his own domains; each claimed descent from + Woden, and, like Romulus or Alexander, sought affinity with the gods. Each + member of the Heptarchy was independent of, and owed no allegiance to, the + other members; and marriage or conquest united them ultimately into one + kingdom. + </p> + <p> + The primary institutions were moulded by time and circumstance, and the + state of things in the eleventh century was as different from that of the + fifth as those of our own time differ from the rule of Richard II. Yet one + was as much an outgrowth of its predecessor as the other. + </p> + <p> + Attempts have been made, with considerable ingenuity, to connect races + with each other by peculiar characteristics, but human society has the + same necessities, and we find great similarity in various divisions of + society. At all times, and in all nations, society resolved itself into + the upper, middle, and lower classes. Rome had its Nobles, Plebeians, and + Slaves; Germany its Edhilingi, Frilingi, and Lazzi; England its Eaorls, + Thanes, and Ceorls. It would be equally cogent to argue that, because Rome + had three classes and England had three classes, the latter was derived + from the former, as to conclude that, because Germany had three classes, + therefore English institutions were Teutonic. If the invasion of the fifth + century were Teutonic we should look for similar nomenclature, but there + is as great a dissimilarity between the English and German names of the + classes as between the former and those of Rome. + </p> + <p> + The Germanic MARK system has no counterpart in the land system introduced + into England by the ANGLO-SAXONs. If village communities existed in + England, it must have been before the invasion of the Romans. The German + system, as described by Caesar, was suited to nomads—to races on the + wing, who gave to no individual possession for more than a year, that + there might be no home ties. The mark system is of a later date, and was + evidently the arrangement of other races who permanently settled + themselves upon the lands vacated by the older nations. And I may suggest + whether, as these lands were originally inhabited by the Celts, the + conquerors did not adopt the system of the conquered. + </p> + <p> + Even in the nomenclature of FEUDALISM, introduced into England in the + fifth century, we are driven back to Scandinavia for an explanation. The + word FEUDAL as applied to land has a Norwegian origin, from which country + came Rollo, the progenitor of William the Norman. Pontoppidan ("History of + Norway," p.290) says "The ODHALL, right of Norway, and the UDALL, right of + Finland, came from the words 'Odh,' which signifies PROPRIETORS, and + 'all,' which means TOTUM. A transposition of these syllables makes ALL + ODH, or ALLODIUM, which means absolute property. FEE, which means stipend + or pay, united with OTH, thus forming FEE-OTH or FEODUM, denoting + stipendiary property. Wacterus states that the word ALLODE, ALLODIUM, + which applies to land in Germany, is composed of AN and LOT—i.e., + land obtained by lot. + </p> + <p> + I therefore venture the opinion that the settlement of England in the + fifth and sixth centuries was not Teutonic or Germanic, but SCANDINAVIAN. + </p> + <p> + The lands won by the swords of all were the common property of all; they + were the lands of the people, FOLC-LAND; they were distributed by lot at + the FOLC-GEMOT; they were ODH-ALL lands; they were not held of any + superior nor was there any service save that imposed by the common danger. + The chieftains were elected and obeyed, because they represented the + entire people. Hereditary right seems to have been unknown. The essence of + feudalism WAS A LIFE ESTATE, the land reverted either to the sovereign or + to the people upon the death of the occupant. At a later period the + monarch claimed the power of confiscating land, and of giving it away by + charter or deed; and hence arose the distinction between FOLC-LAND and + BOC-LAND (the land of the book or charter), a distinction somewhat similar + to the FREEHOLD and COPYHOLD tenures of the present day. King Alfred the + Great bequeathed "his BOC-LAND to his nearest relative; and if any of them + have children it is more agreeable to me that it go to those born on the + male side." He adds, "My grandfather bequeathed his land on the spear + side, not on the spindle side; therefore if I have given what he acquired + to any on the female side, let my kinsman make compensation." + </p> + <p> + The several ranks were thus defined by Athelstane: + </p> + <p> + "1st. It was whilom in the laws of the English that the people went by + ranks, and these were the counsellors of the nation, of worship worthy + each according to his condition—'eorl,' 'ceorl,' 'thegur,' and + 'theodia.' + </p> + <p> + "2d. If a ceorl thrived, so that he had fully five hides (600 acres) of + land, church and kitchen, bell-house and back gatescal, and special duty + in the king's hall, then he was thenceforth of thane-right worthy. + </p> + <p> + "3d. And if a thane thrived so that he served the king, and on his summons + rode among his household, if he then had a thane who him followed, who to + the king utward five hides, had, and in the king's hall served his lord, + and thence, with his errand, went to the king, he might thenceforth, with + his fore oath, his lord represent at various needs, and his and his plant + lawfully conduct wheresoever he ought. + </p> + <p> + "4th. And he who so prosperous a vicegerent had not, swore for himself + according to his right or it forfeited. + </p> + <p> + "5th. And if a 'thane' thrived so that he became an eorl, then was he + thenceforth of eorl-right worthy. + </p> + <p> + "6th. And if a merchant thrived so that he fared thrice over the wide sea + by his own means (or vessels), then was he thenceforth of thane-right + worthy." + </p> + <p> + The oath of fealty, as prescribed by the law of Edward and Guthrum, was + very similar to that used at a later period, and ran thus: + </p> + <p> + "Thus shall a man swear fealty: By the Lord, before whom this relic is + holy, I will be faithful and true, and love all that he loves, and shun + all that he shuns, according to God's law, and according to the world's + principles, and never by will nor by force, by word nor by work, do aught + of what is loathful to him, on condition that he me keep, as I am willing + to deserve, and all that fulfil, that our agreement was, when I to him + submitted and chose his will." + </p> + <p> + The Odh-all (noble) land was divided into two classes: the in-lands, which + were farmed by slaves under Bailiffs, and the out-lands, which were let to + ceorls either for one year or for a term. The rents were usually paid in + kind, and were a fixed proportion of the produce. Ina, King of the West + Saxons, fixed the rent of ten hides (1200 acres), in the beginning of the + eighth century, as follows: 10 casks honey, 12 casks strong ale, 30 casks + small ale, 300 loaves bread, 2 oxen, 10 wedders, 10 geese, 20 hens, 10 + chickens, 10 cheeses, 1 cask butter, 5 salmon, 20 lbs. forage, and 100 + eels. In the reign of Edgar the Peaceable (tenth century), land was sold + for about four shillings of the then currency per acre. The Abbot of Ely + bought an estate about this time, which was paid for at the rate of four + sheep or one horse for each acre. + </p> + <p> + The FREEMEN (LIBERI HOMINES) were a very numerous class, and all were + trained in the use of arms. Their FOLC-LAND was held under the penalty of + forfeiture if they did not take the field, whenever required for the + defence of the country. In addition, a tax, called Danegeld, was levied at + a rate varying from two shillings to seven shillings per hide of land (120 + acres); and in 1008, each owner of a large estate, 310 hides, was called + on to furnish a ship for the navy. + </p> + <p> + Selden ("Laws and Government of England," p. 34) thus describes the + FREEMEN among the Saxons, previous to the Conquest: + </p> + <p> + "The next and most considerable degree of all the people is that of the + FREEMEN, anciently called Frilingi, [Footnote: This is a Teutonic, not an + ANGLO-SAXON term; the ANGLO-SAXON word is Thane.] or Free-born, or such as + are born free from all yoke of arbitrary power, and from all law of + compulsion, other than what is made by their voluntary consent, for all + FREEMEN have votes in the making and executing of the general laws of the + kingdom. In the first, they differed from the Gauls, of whom it is noted + that the commons are never called to council, nor are much better than + servants. In the second, they differ from many free people, and are a + degree more excellent, being adjoined to the lords in judicature, both by + advice and power (consilium et authoritates adsunt), and therefore those + that were elected to that work were called Comites ex plebe, and made one + rank of FREEMEN for wisdom superior to the rest. Another degree of these + were beholden for their riches, and were called Custodes Pagani, an + honorable title belonging to military service, and these were such as had + obtained an estate of such value as that their ordinary arms were a + helmet, a coat of mail, and a gilt sword. The rest of the FREEMEN were + contented with the name of Ceorls, and had as sure a title to their own + liberties as the Custodes Pagani or the country gentlemen had." + </p> + <p> + Land was liable to be seized upon for treason and forfeited; but even + after the monarchs had assumed the functions of the FOLC-GEMOT, they were + not allowed to give land away without the approval of the great men; + charters were consented to and witnessed in council. "There is scarcely a + charter extant," says Chief Baron Gilbert, "that is not proof of this + right." The grant of Baldred, King of Kent, of the manor of Malling, in + Sussex, was annulled because it was given without the consent of the + council. The subsequent gift thereof, by Egbert and Athelwolf, was made + with the concurrence and assent of the great men. The kings' charters of + escheated lands, to which they had succeeded by a personal right, usually + declared "that it might be known that what they gave was their own." + </p> + <p> + Discussions have at various times taken place upon the question, "Was the + land-system of this period FEUDAL?" It engaged the attention of the Irish + Court of King's Bench, in the reign of Charles I., and was raised in this + way: James I. had issued "a commission of defective titles." Any Irish + owner, upon surrendering his land to the king, got a patent which + reconvened it on him. Wentworth (Lord Stafford) wished to SETTLE + Connaught, as Ulster had been SETTLED in the preceding reign, and, to + accomplish it, tried to break the titles granted under "the commission of + defective titles." Lord Dillon's case, which is still quoted as an + authority, was tried. The plea for the Crown alleged that the honor of the + monarch stood before his profit, and as the commissioners were only + authorized to issue patents to hold in capite, whereas they had given + title "to hold in capite, by knights' service out of Dublin Castle," the + grant was bad. In the course of the argument, the existence of feudal + tenures, before the landing of William of Normandy, was discussed, and Sir + Henry Spelman's views, as expressed in the Glossary, were considered. The + Court unanimously decided that feudalism existed in England under the + ANGLO-SAXONs, and it affirmed that Sir Henry Spelman was wrong. This + decision led Sir Henry Spelman to write his "Treatise on Feuds," which was + published after his death, in which he reasserted the opinion that + feudalism was introduced into England at the Norman invasion. This + decision must, however, be accepted with a limitation; I think there was + no separate order of NOBILITY under the ANGLO-SAXON rule. The king had his + councillors, but there appears to have been no order between him and the + FOLC-GEMOT. The Earls and the Thanes met with the people, but did not form + a separate body. The Thanes were country gentleman, not senators. The + outcome of the heptarchy was the Earls or Ealdermen; this was the only + order of nobility among the Saxons; they corresponded to the position of + lieutenants of counties, and were appointed for life. In 1045 there were + nine such officers; in 1065 there were but six. Harold's earldom, at the + former date, comprised Norfolk, Suffolk, Essex, and Middlesex; and + Godwin's took in the whole south coast from Sandwich to the Land's End, + and included Kent, Sussex, Hampshire, Wilts, Devonshire, and Cornwall. + Upon the death of Godwin, Harold resigned his earldom, and took that of + Godwin, the bounds being slightly varied. Harold retained his earldom + after he became king, but on his death it was seized upon by the + Conqueror, and divided among his followers. + </p> + <p> + The Crown relied upon the LIBERI HOMINES or FREEMEN. The country was not + studded with castles filled with armed men. The HOUSE of the Thane was an + unfortified structure, and while the laws relating to land were, in my + view, essentially FEUDAL, the government was different from that to which + we apply the term FEUDALISM, which appears to imply baronial castles, + armed men, and an oppressed people. + </p> + <p> + I venture to suggest to some modern writers that further inquiry will show + them that FOLC-LAND was not confined to commonages, or unallotted + portions, but that at the beginning it comprised all the land of the + kingdom, and that the occupant did not enjoy it as owner-in-severalty; he + had a good title against his fellow subjects, but he held under the + FOLC-GEMOT, and was subject to conditions. The consolidation of the + sovereignty, the extension of laws of forfeiture, the assumption by the + kings of the rights of the popular assemblies, all tended to the formation + of a second set of titles, and BOC-LAND became an object of ambition. The + same individual appears to have held land by both titles, and to have had + greater powers over the latter than over the former. + </p> + <p> + Many of those who have written on the subject seem to me to have failed to + grasp either the OBJECT or the GENIUS of FEUDALISM. It was the device of + conquerors to maintain their possessions, and is not to be found among + nations, the original occupiers of the land, nor in the conquests of + states which maintained standing armies. The invading hosts elected their + chieftain, they and he had only a life use of the conquests. Upon the + death of one leader another was elected, so upon the death of the allottee + of a piece of land it reverted to the state. The GENIUS of FEUDALISM was + life ownership and non-partition. Hence the oath of fealty was a personal + obligation, and investiture was needful before the new feudee took + possession. The state, as represented by the king or chieftain, while + allowing the claim of the family, exercised its right to select the + individual. All the lands were considered BENEFICIA, a word which now + means a charge upon land, to compensate for duties rendered to the state. + Under this system, the feudatory was a commander, his residence a barrack, + his tenants soldiers; it was his duty to keep down the aborigines, and to + prevent invasion. He could neither sell, give, nor bequeath his land. He + received the surplus revenue as payment for personal service, and thus + enjoyed his BENEFICE. Judged in this way, I think the feudal system + existed before the Norman Conquest. Slavery and serfdom undoubtedly + prevailed. The country prospered under the Scandinavians; and, from the + great abundance of corn, William of Poitiers calls England "the + store-house of Ceres." + </p> + <p> + <a name="link2H_4_0005" id="link2H_4_0005"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + IV. THE NORMANS. + </h2> + <p> + The invasion of William of Normandy led to results which have been + represented by some writers as having been the most momentous in English + history. I do not wish in any way to depreciate their views, but it seems + to me not to have been so disastrous to existing institutions, as the + Scandinavian invasion, which completely submerged all former usages. No + trace of Roman occupation survived the advent of the ANGLO-SAXONs; the + population was reduced to and remained in the position of serfs, whereas + the Norman invasion preserved the existing institutions of the nation, and + subsequent changes were an outgrowth thereof. + </p> + <p> + When Edward the Confessor, the last descendant of Cedric, was on his + deathbed, he declared Harold to be his successor, but William of Normandy + claimed the throne under a previous will of the same monarch. He asked for + the assistance of his own nobles and people in the enterprise, but they + refused at first, on the ground that their feudal compact only required + them to join in the defence of their country, and did not coerce them into + affording him aid in a completely new enterprise; and it was only by + promising to compensate them out of the spoils that he could secure their + co-operation. A list of the number of ships supplied by each Norman + chieftain appears in Lord Lyttleton's "History of Henry III." vol. i., + appendix. + </p> + <p> + I need hardly remind you that the settlers in Normandy were from Norway, + or that they had been expelled from their native land in consequence of + their efforts to subvert its institutions, and to make the descent of land + hereditary, instead of being divisible among all the sons of the former + owner. Nor need I relate how they won and held the fair provinces of + northern France—whether as a fief of the French Crown or not, is an + open question. But I should wish you to bear in mind their affinity to the + ANGLO-SAXONs, to the Danes, and to the Norwegians, the family of Sea + Robbers, whose ravages extended along the coasts of Europe as far south as + Gibraltar, and, as some allege, along the Mediterranean. Some questions + have been raised as to the means of transport of the Saxons, the Jutes, + and the Angles, but they were fully as extensive as those by which Rollo + invaded France or William invaded England. + </p> + <p> + William strengthened his claim to the throne by his military success, and + by a form of election, for which there were many previous precedents. + Those who called upon him to ascend it alleged "that they had always been + ruled by legal power, and desired to follow in that respect the example of + their ancestors, and they knew of no one more worthy than himself to hold + the reins of government." + </p> + <p> + His alleged title to the crown, sanctioned by success and confirmed by + election, enabled him, in conformity with existing institutions, to seize + upon the lands of Harold and his adherents, and to grant them as rewards + to his followers. Such confiscation and gifts were entirely in accord with + existing usages, and the great alteration which took place in the + principal fiefs was more a change of persons than of law. A large body of + the aboriginal people had been, and continued to be, serfs or villeins; + while the mass of the FREEMEN (LIBERI HOMINES) remained in possession of + their holdings. + </p> + <p> + It may not be out of place here to say a few words about this important + class, which is in reality the backbone of the British constitution; it + was the mainstay of the ANGLO-SAXON monarchy; it lost its influence during + the civil wars of the Plantagenets, but reasserted its power under + Cromwell. Dr. Robertson thus draws the line between them and the vassals: + </p> + <p> + "In the same manner Liber homo is commonly opposed to Vassus or Vassalus, + the former denoting an allodial proprietor, the latter one who held of a + superior. These FREEMEN were under an obligation to serve the state, and + this duty was considered so sacred that FREEMEN were prohibited from + entering into holy orders, unless they obtained the consent of the + sovereign." + </p> + <p> + De Lolme, chap. i., sec. 5, says: + </p> + <p> + "The Liber homo, or FREEMAN, has existed in this country from the earliest + periods, as well as of authentic as of traditionary history, entitled to + that station in society as one of his constitutional rights, as being + descended from free parents in contradistinction to 'villains,' which + should be borne in remembrance, because the term 'FREEMAN' has been, in + modern times, perverted from its constitutional signification without any + statutable authority." The LIBERI HOMINES are so described in the Doomsday + Book. They were the only men of honor, faith, trust, and reputation in the + kingdom; and from among such of these as were not barons, the knights did + choose jurymen, served on juries themselves, bare offices, and dispatched + country business. Many of the LIBERI HOMINES held of the king in capite, + and several were freeholders of other persons in military service. Their + rights were recognized and guarded by the 55th William I.; [Footnote: "LV.—De + Chartilari seu Feudorum jure et Ingenuorum immunitate. Volumus etiam ac + firmiter praecipimus et concedimus ut omnes LIBERI HOMINES totius + Monarchiae regni nostri praedicti habeant et teneant terras suas et + possessiones suas bene et in pace, liberi ab omni, exactione iniusta et ab + omni Tallagio: Ita quod nihil ab eis exigatur vel capiatur nisi servicium + suum liberum quod de iure nobis facere debent et facere tenentur et prout + statutum est eis et illis a nobis datum et concessum iure haereditario + imperpetuum per commune consilium totius regni nostri praeicti."] it is + entitled: + </p> + <p> + "CONCERNING CHEUTILAR OR FEUDAL RIGHTS, AND THE IMMUNITY OF FREEMEN. + </p> + <p> + "We will also, and strictly, enjoin and concede that all FREEMEN (LIBERI + HOMINES) of our whole kingdom aforesaid, have and hold their land and + possessions well and in peace, free from every unjust exaction and from + Tallage, so that nothing be exacted or taken from them except their free + service, which of right they ought to do to us and are bound to do, and + according as it was appointed (statutum) to them, and given to them by us, + and conceded by hereditary right for ever, by the common council + (FOLC-GEMOT} of our whole realm aforesaid." + </p> + <p> + These FREEMEN were not created by the Norman Conquest, they existed prior + thereto; and the laws, of which this is one, are declared to be the laws + of Edward the Confessor, which William re-enacted. Selden, in "The Laws + and Government of England," p. 34, speaks of this law as the first Magna + Charta. He says: + </p> + <p> + "Lastly, the one law of the kings, which may be called the first MAGNA + CHARTA in the Norman times (55 William I.), by which the king reserved to + himself, from the FREEMEN of this kingdom, nothing but their free service, + in the conclusion saith that their lands were thus granted to them in + inheritance of the king by the COMMON COUNCIL (FOLC-GEMOT) of the whole + kingdom; and so asserts, in one sentence, the liberty of the FREEMEN, and + of the representative body of the kingdom." + </p> + <p> + He further adds: + </p> + <p> + "The freedom of an ENGLISHMAN consisteth of three particulars: first, in + OWNERSHIP; second, in VOTING ANY LAW, whereby ownership is maintained; + and, thirdly, in having an influence upon the JUDICIARY POWER that must + apply the law. Now the English, under the Normans, enjoyed all this + freedom with each man's own particular, besides what they had in bodies + aggregate. This was the meaning of the Normans, and they published the + same to the world in a fundamental law, whereby is granted that all + FREEMEN shall have and hold their lands and possessions in hereditary + right for ever; and by this they being secured from forfeiture, they are + further saved from all wrong by the same law, which provideth that they + shall hold them well or quietly, and in peace, free from all unjust tax, + and from all Tallage, so as nothing shall be exacted nor taken but their + free service, which, by right, they are bound to perform." + </p> + <p> + This is expounded in the law of Henry I., cap. 4, to mean that no tribute + or tax shall be taken but what was due in the Confessor's time, and Edward + II. was sworn to observe the laws of the Confessor. + </p> + <p> + The nation was not immediately settled. Rebellions arose either from the + oppression of the invaders or the restlessness of the conquered; and, as + each outburst was put down by force, there were new lands to be + distributed among the adherents of the monarch; ultimately there were + about 700 chief tenants holding IN CAPITE, but the nation was divided into + 60,215 knights' fees, of which the Church held 28,115. The king retained + in his own hands 1422 manors, besides a great number of forests, parks, + chases, farms, and houses, in all parts of the kingdom; and his followers + received very large holdings. + </p> + <p> + Among the Saxon families who retained their land was one named Shobington + in Bucks. Hearing that the Norman lord was coming to whom the estate had + been gifted by the king, the head of the house armed his servants and + tenants, preparing to do battle for his rights; he cast up works, which + remain to this day in grassy mounds, marking the sward of the park, and + established himself behind them to await the despoiler's onset. It was the + period when hundreds of herds of wild cattle roamed the forest lands of + Britain, and, failing horses, the Shobingtons collected a number of bulls, + rode forth on them, and routed the Normans, unused to such cavalry. + William heard of the defeat, and conceived a respect for the brave man who + had caused it; he sent a herald with a safe conduct to the chief, + Shobington, desiring to speak with him. Not many days after, came to court + eight stalwart men riding upon bulls, the father and seven sons. "If thou + wilt leave me my lands, O king," said the old man, "I will serve thee + faithfully as I did the dead Harold." Whereupon the Conqueror confirmed + him in his ownership, and named the family Bullstrode, instead of + Shobington. + </p> + <p> + Sir Martin Wright, in his "Treatise on Tenures," published in 1730, p. 61, + remarks: + </p> + <p> + "Though it is true that the possessions of the Normans were of a sudden + very great, and that they received most of them from the hands of William + I., yet it does not follow that the king took all the lands of England out + of the hands of their several owners, claiming them as his spoils of war, + or as a parcel of a conquered country; but, on the contrary, it appears + pretty plain from the history of those times that the king either had or + pretended title to the crown, and that his title, real or pretended, was + established by the death of Harold, which amounted to an unquestionable + judgment in his favor. He did not therefore treat his opposers as enemies, + but as traitors, agreeably to the known laws of the kingdom which + subjected traitors not only to the loss of life but of all their + possessions." + </p> + <p> + He adds (p. 63): + </p> + <p> + "As William I. did not claim to possess himself of the lands of England as + the spoils of conquest, so neither did he tyrannically and arbitrarily + subject them to feudal dependence; but, as the fedual law was at that time + the prevailing law of Europe, William I., who had always governed by this + policy, might probably recommend it to our ancestors as the most obvious + and ready way to put them upon a footing with their neighbors, and to + secure the nation against any future attempts from them. We accordingly + find among the laws of William I. a law enacting feudal law itself, not EO + NOMINE, but in effect, inasmuch as it requires from all persons the same + engagements to, and introduces the same dependence upon, the king as + supreme lord of all the lands of England, as were supposed to be due to a + supreme lord by the feudal law. The law I mean is the LII. law of William + I." + </p> + <p> + This view is adopted by Sir William Blackstone, who writes (vol. ii., p. + 47): + </p> + <p> + "From the prodicious slaughter of the English nobility at the battle of + Hastings, and the fruitless insurrection of those who survived, such + numerous forfeitures had accrued that he (William) was able to reward his + Norman followers with very large and extensive possessions, which gave a + handle to monkish historians, and such as have implicitly followed them to + represent him as having by the right of the sword, seized upon all the + lands of England, and dealt them out again to his own favorites—a + supposition grounded upon a mistaken sense of the word conquest, which in + its feudal acceptation signifies no more than acquisition, and this has + led many hasty writers into a strange historical mistake, and one which, + upon the slightest examination, will be found to be most untrue. + </p> + <p> + "We learn from a Saxon chronicle (A.D. 1085), that in the nineteenth year + of King William's reign, an invasion was apprehended from Denmark; and the + military constitution of the Saxons being then laid aside, and no other + introduced in its stead, the kingdom was wholly defenceless; which + occasioned the king to bring over a large army of Normans and Britons who + were quartered upon, and greatly oppressed, the people. This apparent + weakness, together with the grievances occasioned by a foreign force, + might co-operate with the king's remonstrance, and better incline the + nobility to listen to his proposals for putting them in a position of + defence. For, as soon as the danger was over, the king held a great + council to inquire into the state of the nation, the immediate consequence + of which was the compiling of the great survey called the Doomsday Book, + which was finished the next year; and in the end of that very year (1086) + the king was attended by all his nobility at Sarum, where the principal + landholders submitted their lands to the yoke of military tenure, and + became the king's vassals, and did homage and fealty to his person." + </p> + <p> + Mr. Henry Hallam writes: + </p> + <p> + "One innovation made by William upon the feudal law is very deserving of + attention. By the leading principle of feuds, an oath of fealty was due + from the vassal to the lord of whom he immediately held the land, and no + other. The King of France long after this period had no feudal, and + scarcely any royal, authority over the tenants of his own vassals; but + William received at Salisbury, in 1085, the fealty of all landholders in + England, both those who held in chief and their tenants, thus breaking in + upon the feudal compact in its most essential attribute—the + exclusive dependence of a VASSAL upon his lord; and this may be reckoned + among the several causes which prevented the continental notions of + independence upon the Crown from ever taking root among the English + aristocracy." + </p> + <p> + A more recent writer, Mr. FREEMAN ("History of the Norman Conquest," + published in 1871, vol. iv., p. 695), repeats the same idea, though not + exactly in the same words. After describing the assemblage which encamped + in the plains around Salisbury, he says: + </p> + <p> + "In this great meeting a decree was passed, which is one of the most + memorable pieces of legislation in the whole history of England. In other + lands where military tenure existed, it was beginning to be held that he + who plighted his faith to a lord, who was the man of the king, was the man + of that lord only, and did not become the man of the king himself. It was + beginning to be held that if such a man followed his immediate lord to + battle against the common sovereign, the lord might draw on himself the + guilt of treason, but the men that followed him would be guiltless. + William himself would have been amazed if any vassal of his had refused to + draw his sword in a war with France on the score of duty toward an + over-lord. But in England, at all events, William was determined to be + full king over the whole land, to be immediate sovereign and immediate + lord of every man. A statute was passed that every FREEMAN in the realm + should take the oath of fealty to King William." + </p> + <p> + Mr. FREEMAN quotes Stubbs's "Select Charters," p. 80, as his authority. + Stubbs gives the text of that charter, with ten others. He says: "These + charters are from 'Textus Roffensis,' a manuscript written during the + reign of Henry I.; it contains the sum and substance of all the legal + enactments made by the Conqueror independent of his confirmation of the + earlier laws." It is as follows: "Statuimus etiam ut OMNIS LIBER HOMO + feodere et sacramento affirmet, quod intra et extra Angliam Willelmo regi + fideles esse volunt, terras et honorem illius omni fidelitate cum eo + servare et eum contra inimicos defendere." + </p> + <p> + It will be perceived that Mr. Hallam reads LIBER HOMO as "vassal." Mr. + FREEMAN reads them as "FREEMAN," while the older authority, Sir Martin + Wright, says: "I have translated the words LIBERI HOMINES, 'owners of + land,' because the sense agrees best with the tenor of the law." + </p> + <p> + The views of writers of so much eminence as Sir Martin Wright, Sir William + Blackstone, Mr. Henry Hallam, and Mr. FREEMAN, are entitled to the + greatest respect and consideration, and it is with much diffidence I + venture to differ from them. The three older writers appear to have had + before them the LII of William I., the latter the alleged charter found in + the "Textus Roffensis;" but as they are almost identical in expression, I + treat the latter as a copy of the former, and I do not think it bears out + the interpretation sought to be put upon it—that it altered either + the feudalism of England, or the relation of the vassal to his lord; and + it must be borne in mind that not only did William derive his title to the + crown from Edward the Confessor, but he preserved the apparent continuity, + and re-enacted the laws of his predecessor. Wilkins' "Laws of the + ANGLO-SAXONs and Normans," republished in 1840 by the Record + Commissioners, gives the following introduction: + </p> + <p> + "Here begin the laws of Edward, the glorious king of England. + </p> + <p> + "After the fourth year of the succession to the kingdom of William of this + land, that is England, he ordered all the English noble and wise men and + acquainted with the law, through the whole country, to be summoned before + his council of barons, in order to be acquainted with their customs, + Having therefore selected from all the counties twelve, they were sworn + solemnly to proceed as diligently as they might to write their laws and + customs, nothing omitting, nothing adding, and nothing changing." + </p> + <p> + Then follow the laws, thirty-nine in number, thus showing the continuity + of system, and proving that William imposed upon his Norman followers the + laws of the ANGLO-SAXONs. They do not include the LII. William I., to + which I shall refer hereafter. I may, however, observe that the + demonstration at Salisbury was not of a legislative character; and that it + was held in conformity with ANGLO-SAXON usages. If, according to Stubbs, + the ordinance was a charter, it would proceed from the king alone. The + idea involved in the statements of Sir Martin Wright, Mr. Hallam, and Mr. + FREEMAN, that the VASSAL OF A LORD was then called on to swear allegiance + to the KING, and that it altered the feudal bond in England, is not + supported by the oath of vassalage. In swearing fealty, the vassal knelt, + placed his hands between those of his lord's, and swore: + </p> + <p> + "I become your man from this day forward, of life and limb, and of earthly + worship, and unto you shall be true and faithful, and bear you faith for + the tenements at that I claim to hold of you, saving the faith that I owe + unto our Sovereign Lord the King." + </p> + <p> + This shows that it was unnecessary to call vassals to Salisbury to swear + allegiance. The assemblage was of the same nature and character as + previous meetings. It was composed of the LIBERI HOMINES, the FREEMEN, + described by the learned John Selden (ante, p. 10), and by Dr. Robertson + and De Lolme (ante, pp. 12, 13). + </p> + <p> + But there is evidence of a much stronger character, which of itself + refutes the views of these writers, and shows that the Norman system, at + least during the reign of William I., was a continuation of that existing + previous to his succession to the throne; and that the meeting at + Salisbury, so graphically portrayed, did not effect that radical change in + the position of English landholders which has been stated. I refer to the + works of EADMERUS; he was a monk of Canterbury who was appointed Bishop of + St. Andrews, and declined or resigned the appointment because the King of + Scotland refused to allow his consecration by the Archbishop of + Canterbury. His history includes the reigns of William I., William II., + and Henry I., from 1066 to 1122, and he gives, at page 173, the laws of + Edward the Confessor, which William I. gave to England; they number + seventy-one, including the LII. law quoted by Sir Martin Wright. The + introduction to these laws is in Latin and Norman-French, and is as + follows: + </p> + <p> + "These are the laws and customs which King William granted to the whole + people of England after he had conquered the land, and they are those + which KING EDWARD HIS PREDECESSOR observed before him." + </p> +<pre xml:space="preserve"> + [Footnote: The laws of William are given in a work entitled + "Eadmeri Monachi Cantuariensis Historia Novorum," etc. It + includes the reigns of William I. and II., and Henry I., + from 1066 to 1122, and is edited by John Selden. Page 173 + has the following: + + "Hae sunt Leges et Consuetudines quas Willielmus Rex + concessit universo Populo Angliae post subactam terram. + Eaedum sunt quas Edwardus Rex cognatus ejus obscruauit ante + eum. + + "Ces sont les leis et les Custums que le Rui people de + Engleterre apres le Conquest de le Terre. Ice les meismes + que le Rui Edward sun Cosin tuit devant lui. + + "LII. + + "De fide et obsequio erga Regnum. + + "Statuimus etiam ut omnes liiben homines foedere et + sacramento affirment quod intra et extra universum regnum + Anglias (quod olim vocabatur regnum Britanniae) Willielmo + suo domino fideles esse volunt, terras et honores illins + fidelitate ubique servare cum eo et contra inimicos et + alienigonas defendere."] +</pre> + <p> + This simple statement gets rid of the theory of Sir Martin Wright, of Sir + William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that William + introduced a new system, and that he did so either as a new feudal law or + as an amendment upon the existing feudalism. The LII. law, quoted by + Wright, is as follows: + </p> + <p> + "We have decreed that all FREE MEN should affirm on oath, that both within + and without the whole kingdom of England (which is called Britain) they + desire to be faithful to William their lord, and everywhere preserve unto + him his land and honors with fidelity, and defend them against all enemies + and strangers." + </p> + <p> + Eadmerus, who wrote in the reign of Henry I., gives the LII. William I. as + a confirmatory law. The charter given by Stubbs is a contraction of the + law given by Eadmerus. The former uses the words OMNES LIBERI HOMINES; the + latter, the words OMNIS LIBERI HOMO. Those interested can compare them, as + I shall give the text of each side by side. + </p> + <p> + Since the paper was read, I have met with the following passage in + Stubbs's "Constitutional History of England," vol. i., p. 265: + </p> + <p> + "It has been maintained that a formal and definitive act, forming the + initial point of the feudalization of England, is to be found in a clause + of the laws, as they are called, of the Conqueror, which directs that + every FREEMAN shall affirm, by covenant and oath, that 'he will be + faithful to King William within England and without, will join him in + preserving his land with all fidelity, and defend him against his + enemies.' But this injunction is little more than the demand of the oath + of allegiance taken to the Anglo-Saxon kings, and is here required not of + every feudal dependant of the king, but of every FREEMAN or freeholder + whatsoever. In that famous Council of Salisbury, A. D, 1086, which was + summoned immediately after the making of the Doomsday survey, we learn, + from the 'Chronicle,' that there came to the king 'all his witan and all + the landholders of substance in England, whose vassals soever they were, + and they all submitted to him and became his men, and swore oaths of + allegiance that they would be faithful to him against all others.' In the + act has been seen the formal acceptance and date of the introduction of + feudalism, but it has a very different meaning. The oath described is the + oath of allegiance, combined with the act of homage, and obtained from all + landowners whoever their feudal lord might be. It is a measure of + precaution taken against the disintegrating power of feudalism, providing + a direct tie between the sovereign and all freeholders which no inferior + relations existing between them and the mesne lords would justify them in + breaking." + </p> + <p> + I have already quoted from another of Stubbs's works, "Select Charters," + the charter which he appears to have discovered bearing upon this + transaction, and now copy the note, giving the authorities quoted by + Stubbs, with reference to the above passage. He appears to have overlooked + the complete narration of the alleged laws of William I., given by + Eadmerus, to which I have referred. The note is as follows: + </p> + <p> + "Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, seq., where + I have attempted to prove the spuriousness of the document called the + Charter of William I., printed in the ancient 'Laws' ed. Thorpe, p. 211. + The way in which the regulation of the Conqueror here referred to has been + misunderstood and misused is curious. Lambarde, in the 'Archaionomia,' p. + 170, printed the false charter in which this genuine article is + incorporated as an appendiz to the French version of the Conqueror's laws, + numbering the clauses 51 to 67; from Lambarde, the whole thing was + transferred by Wilkins into his collection of ANGLO-SAXON laws. + Blackstone's 'Commentary,' ii. 49, suggested that perhaps the very law + (which introduced feudal tenures) thus made at the Council of Salisbury is + that which is still extant and couched in these remarkable words, i. e., + the injunction in question referred to by Wilkins, p. 228 Ellis, in the + introduction to 'Doomsday,' i. 16, quotes Blackstone, but adds a reference + to Wilkins without verifying Blackstone's quotation from his collection of + laws, substituting for that work the Concilia, in which the law does not + occur. Many modern writers have followed him in referring the enactment of + the article to the Council of Salisbury. It is well to give here the text + of both passages; that in the laws runs thus: 'Statuimus etiam ut omnis + liber homo foedere et sacremento affirmet, quod intra et extra Angliam + Willelmo regi fideles esse volunt, terras et honorem illius omni + fidelitate eum eo servare et ante eum contra inimicos defendere' (Select + Charters, p. 80). the homage done at Salisbury is described by Florence + thus: 'Nec multo post mandavit ut Archiepiscopi episcopi, abbates, comitas + et barones et vicecomitas cum suis militibus die Kalendarum Augustarem + sibi occurent Saresberiae quo cum venissent milites eorem sibi fidelitatem + contra omnes homines jurare coegit.' The 'Chronicle' is a little more + full: 'Thaee him comon to his witan and ealle tha Landsittende men the + ahtes waeron ofer eall Engleland waeron thaes mannes men the hi waeron and + ealle hi bugon to him and waeron his men, and him hold athas sworon thaet + he woldon ongean ealle other men him holde beon.'" + </p> + <p> + Mr. Stubbs had, in degree, adopted the view at which I had arrived, that + the law or charter of William I. was an injunction to enforce the oath of + allegiance, previously ordered by the laws of Edward the Confessor, to be + taken by all FREEMEN, and that it did not relate to vassals, or alter the + existing feudalism. + </p> + <p> + As the subject possesses considerable interest for the general reader as + well as the learned historian, I think it well to place the two + authorities side by side, that the text may be compared: + </p> + <p> + LII. William I., as given by Eadments. "De fide et obsequio erga Regnum. + </p> + <p> + "Statuimus etiam ut omnes LIBERI HOMINES foedere et sacramento affirment + quod intra et extra univereum regnum Anglise (quod olim vocabatur regnum + Britanniae) Wilhielmo suo domino fideles ease volunt, terras et honores + ilius fidelitate ubique servare cum eo et contra inimicos et alienigenas + defendere." + </p> + <p> + Charter from Textus Roffensis, given by Mr. Stubbs. + </p> + <p> + "Statuimus etiam ut omnis liber homo feodere et sacramento affirmet, quod + intra et extra Angliam. Willelmo regi fideles ease volunt, terras et + honorem illius omni fidelitate cum eo servare et ante eum contra inimicos + defendere." + </p> + <p> + I think the documents I have quoted show that Sir Martin Wright, Sir + William Blackstone, and Messrs. Hallam and FREEMAN, labored under a + mistake in supposing that William had introduced or imposed a new feudal + law, or that the vassals of a lord swore allegiance to the king. The + introduction to the laws of William I. shows that it was not a new + enactment, or a Norman custom introduced into England, and the law itself + proves that it relates to FREEMEN, and not to vassals. + </p> + <p> + The misapprehension of these authors may have arisen in this way: William + I. had two distinct sets of subjects. The NORMANS, who had taken the oath + of allegiance on obtaining investiture, and whose retinue included + vassals; and the ANGLO-SAXONS, among whom vassalage was unknown, who were + FREEMAN (LIBERI HOMINES) as distinguished from serfs. The former comprised + those in possesion of Odhal (noble) land, whether held from the crown or + its tenants. It was quite unnecessary to convoke the Normans and their + vassals, while the assemblage of the Saxons—OMNES LIBERI HOMINES—was + not only to conformity with the laws of Edward the Confessor, but was + specially needful when a foreigner had possesed himself of the throne. + </p> + <p> + I have perhaps dwelt to long upon this point, but the error to which I + have referred has been adopted as if it was an unquestioned fact, and has + passed into our school-books and become part of the education given to the + young, and therefore it required some examination. + </p> + <p> + I believe that a very large portion of the land in England did not change + hands at that period, nor was the position of either SERFS or VILLEINS + changed. The great alteration lay in the increase in the quantity of + BOC-LAND. Much of the FOLC-LAND was forfeited and seized upon, and as the + king claimed the right to give it away, it was called TERRA REGIS. The + charter granted by King William to Alan Fergent, Duke of Bretagne, of the + lands and towns, and the rest of the inheritance of Edwin, Earl of + Yorkshire, runs thus: + </p> + <p> + "Ego Guilielmus cognomine Bastardus, Rex Anglise do et concede tibi nepoti + meo Alano Brittanias Comiti et hseredibus tuis imperpetuum omnes villas et + terras qua nuper fuerent Comitis Edwini in Eborashina cum feodis militise + et aliis libertatibus et consuetudinibus ita libere et honorifice sicut + idem Edwinus eadem tenuit. + </p> + <p> + "Data obsidione coram civitate Eboraci." + </p> + <p> + This charter does not create a different title, but gives the lands as + held by the former possessor. The monarch assumed the function of the + fole-gemot, but the principle remained—the feudee only became tenant + for life. Each estate reverted to the Crown on the death of him who held + it; but, previous to acquiring possession, the new tenant had to cease to + be his own "man," and became the "man" of his superior. This act was + called "homage," and was followed by "investiture." In A.D. 1175, Prince + Henry refused to trust himself with his father till his homage had been + renewed and accepted, for it bound the superior to protect the inferior. + The process is thus described by De Lolme (chap, ii., sec. 1): + </p> + <p> + "On the death of the ancestor, lands holden by 'knight's service' and by + 'grand sergeantcy' were, upon inquisition finding the tenure and the death + of the ancestor, seized into the king's hands. If the heir appeared by the + inquisition to be within the age of twenty-one years, the King retained + the lands till the heir attained the age of twenty-one, for his own + profit, maintaining and educating the heir according to his rank. If the + heir appeared by the inquisition to have attained twenty-one, he was + entitled to demand livery of the lands by the king's officers on paying a + relief and doing fealty and homage. The minor heir attaining twenty-one, + and proving his age, was entitled to livery of his lands, on doing fealty + and homage, without paying any relief." + </p> + <p> + The idea involved is, that the lands Were HELD, and NOT OWNED, and that + the proprietary right lay in the nation, as represented by the king. If we + adopt the poetic idea of the Brehon code, that "land is perpetual man," + then HOMAGE for land was not a degrading institution. But it is repugnant + to our ideas to think that any man can, on any ground, or for any + consideration, part with his manhood, and become by homage the "man" of + another. + </p> + <p> + The Norman chieftains claimed to be peers of the monarch, and to sit in + the councils of the nation, as barons-by-tenure and not by patent. This + was a decided innovation upon the usages of the Anglo-Saxons, and + ultimately converted the Parliament, the FOLC-GEMOT, into two branches. + Those who accompanied the king stood in the same position as the + companions of Romulus, they were the PATRICIANS; those subsequently called + to the councils of the sovereign by patent corresponded with the Roman + NOBILES. No such patents were issued by any of the Norman monarchs. But + the insolence of the Norman nobles led to the attempt made by the + successors of the Conqueror to revive the Saxon earldoms as a + counterpoise. The weakness of Stephen enabled the greater fudges to + fortify their castles, and they set up claims against the Crown, which + aggravated the discord that arose in subsequent reigns. + </p> + <p> + The "Saxon Chronicles," p. 238, thus describes the oppressions of the + nobles, and the state of England in the reign of Stephen: + </p> + <p> + "They grievously oppressed the poor people with building castles, and when + they were built, filled them with wicked men, or rather devils, who seized + both men and women who they imagined had any money, threw them into + prison, and put them to more cruel tortures than the martyrs ever endured; + they suffocated some in mud, and suspended others by the feet, or the + head, or the thumbs, kindling fires below them. They squeezed the heads of + some with knotted cords till they pierced their brains, while they threw + others into dungeons swarming with serpents, snakes, and toads." + </p> + <p> + The nation was mapped out, and the owners' names inscribed in the Doomsday + Book. There were no unoccupied lands, and had the possessors been loyal + and prudent, the sovereign would have had no lands, save his own private + domains, to give away, nor would the industrious have been able to become + tenants-in-fee. The alterations which have taken place in the possession + of land since the composition of the Book of Doom, have been owing to the + disloyalty or extravagance of the descendants of those then found in + possession. + </p> + <p> + Notwithstanding the vast loss of life in the contests following upon the + invasion, the population of England increased from 2,150,000 in 1066, when + William landed, to 3,350,000 in 1152, when the great-grandson of the + Conqueror ascended the throne, and the first of the Plantagenets ruled in + England. + </p> + <p> + <a name="link2H_4_0006" id="link2H_4_0006"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + V. THE PLANTAGENETS. + </h2> + <p> + Whatever doubts may exist as to the influence of the Norman Conquest upon + the mass of the people—the FREEMEN, the ceorls, and the serfs—there + can be no doubt that its effect upon the higher classes was very great. It + added to the existing FEUDALISM—the system of Baronage, with its + concomitants of castellated residences filled with armed men. It led to + frequent contests between neighboring lords, in which the liberty and + rights of the FREEMEN were imperilled. It also eventuated in the formation + of a distinct order-the peerage—and for a time the constitutional + influence of the assembled people, the FOLC-GEMOT, was overborne. + </p> + <p> + The principal Norman chieftains were barons in their own country, and they + retained that position in England, but their holdings in both were feudal, + not hereditary. When the Crown, originally elective, became hereditary, + the barons sought to have their possessions governed by the same rule, to + remove them from the class of TERRAREGIS (FOLC-LAND), and to convert them + into chartered land. Being gifts from the monarch, he had the right to + direct the descent, and all charters which gave land to a man and his + heirs, made each of them only a tenant for life; the possessor was bound + to hand over the estate undivided to the heir, and he could neither give, + sell, nor bequeath it. The land was BENEFICIA, just as appointments in the + Church, and reverted, as they do, to the patron to be re-granted. They + were held upon military service, and the major barons, adopting the Saxon + title Earl, claimed to be PEERS of the monarch, and were called to the + councils of the state as barons-by-tenure. In reply to a QUO WARRANTO, + issued to the Earl of Surrey, in the reign of Edward I., he asserted that + his ancestors had assisted William in gaining England, and were equally + entitled to a share of the spoils. "It was," said he, "by their swords + that his ancestors had obtained their lands, and that by his he would + maintain his rights." The same monarch required the Earls of Hereford and + Norfolk to go over with his army to Guienne, and they replied, "The tenure + of our lands does not require us to do so, unless the king went in + person." The king insisted; the earls were firm. "By God, sir Earl," said + Edward to Hereford, "you shall go or hang." "By God, sir King," replied + the earl, "I will neither go nor hang." The king submitted and forgave his + warmth. + </p> + <p> + The struggle between the nobles and the Crown commenced, and was + continued, under varying circumstances. Each of the barons had a large + retinue of armed men under his own command, and the Crown was liable to be + overborne by a union of ambitious nobles. At one time the monarch had to + face them at Runnymede and yield to their demands; at another he was able + to restrain them with a strong hand. The Church and the barons, when + acting in union, proved too strong for the sovereign, and he had to secure + the alliance of one of these parties to defeat the views of the other. The + barons abused their power over the FREEMEN, and sought to establish the + rule "that every man must have a lord," thus reducing them to a state of + vassalage. King John separated the barons into two classes—major and + minor; the former should have at least thirteen knights' fees and a third + part; the latter remained country gentlemen. The 20th Henry III., cap. 2 + and 4, was passed to secure the rights of FREEMEN, who were disturbed by + the great lords, and gave them an appeal to the king's courts of assize. + </p> + <p> + Bracton, an eminent lawyer who wrote in the time of Henry III., says: + </p> + <p> + "The king hath superiors—viz., God and the law by which he is made + king; also his court—viz., his earls and barons. Earls are the + king's associates, and he that hath an associate hath a master; and + therefore, if the king be unbridled, or (which is all one) without law, + they ought to bridle him, unless they will be unbridled as the king, and + then the commons may cry, Lord Jesus, pity us," etc. + </p> + <p> + An eminent lawyer, time of Edward I., writes: + </p> + <p> + "Although the king ought to have no equal in the land, yet because the + king and his commissioners can be both judge and party, the king ought by + right to have companions, to hear and determine in Parliament all writs + and plaints of wrongs done by the king, the queen, or their children." + </p> + <p> + These views found expression in the coronation oath. Edward II. was forced + to swear: + </p> + <p> + "Will you grant and keep, and by your oath confirm to the people of + England the laws and customs to them, granted by the ancient kings of + England, your righteous and godly predecessors; and especially to the + clergy and people, by the glorious King St. Edward, your predecessor?" + </p> + <p> + The king's answer—"I do them grant and promise." + </p> + <p> + "Do you grant to hold and keep the laws and rightful customs which the + commonalty of your realm shall have chosen, and to maintain and enforce + them to the honor of God after your power?" + </p> + <p> + The king's answer—"I this do grant and promise." + </p> + <p> + I shall not dwell upon the event most frequently quoted with reference to + the era of the Plantagenets—I mean King John's "Magna Charta." It + was more social than territorial, and tended to limit the power of the + Crown, and to increase that of the barons. The Plantagenets had not begun + to call Commons to the House of Lords. The issue of writs was confined to + those who were barons-by-tenure, the PATRICIANS of the Norman period. The + creation of NOBLES was the invention of a later age. The baron feasted in + his hall, while the slave grovelled in his cabin. Bracton, the famous + lawyer of the time of Henry III., says: "All the goods a slave acquired + belonged to his master, who could take them from him whenever he pleased," + therefore a man could not purchase his own freedom. "In the same year, + 1283," says the Annals of Dunstable, "we sold our slave by birth, William + Fyke, and all his family, and received one mark from the buyer." The only + hope for the slave was, to try and get into one of the walled towns, when + he became free. Until the Wars of the Roses, these serfs were greatly + harassed by their owners. + </p> + <p> + In the reign of Edward I., efforts were made to prevent the alienation of + land by those who received it from the Norman sovereigns. The statute of + mortmain was passed to restrain the giving of lands to the Church, the + statute DE DONIS to prevent alienation to laymen. The former declares: + </p> + <p> + "That whereas religious men had entered into the fees of other men, + without license and will of the chief lord, and sometimes appropriating + and buying, and sometimes receiving them of gift of others, whereby the + services that are due of such fee, and which, in the beginning, were + provided for the defence of the realm, are wrongfully withdrawn, and the + chief lord do lose the escheats of the same (the primer seizin on each + life that dropped); it therefore enacts: That any such lands were + forfeited to the lord of the fee; and if he did not take it within twelve + months, it should be forfeited to the king, who shall enfeoff other + therein by certain services to be done for us for the defence of the + realm." + </p> + <p> + Another act, the 6th Edward I., cap. 3, provides: + </p> + <p> + "That alienation by the tenant in courtesy was void, and the heir was + entitled to succeed to his mother's property, notwithstanding the act of + his father." + </p> + <p> + The 13th Edward I., cap. 41, enacts: + </p> + <p> + "That if the abbot, priors, and keepers of hospitals, and other religious + houses, aliened their land they should be seized upon by the king." + </p> + <p> + The 13th Edward I., cap. 1, DE DONIS conditionalitiis, provided: + </p> + <p> + "That tenements given to a man, and the heirs of his body, should, at all + events, go to the issue, if there were any; or, if there were none, should + revert to the donor." + </p> + <p> + But while the fiefs of the Crown were forbidden to alien their lands, the + FREEMEN, whose lands were Odhal (noble) and of Saxon descent, the + inheritance of which was guaranteed to them by 55 William I. (ANTE, p. + 13), were empowered to sell their estates by the statute called QUIA + EMPTORES (6 Edward I.). It enacts: + </p> + <p> + "That from henceforth it shall be lawful to every FREEMEN to sell, at his + own pleasure, his lands and tenements, or part of them: so that the + feoffee shall hold the same lands and tenements of the chief lord of the + fee by such customs as his feoffee held before." + </p> + <p> + The scope of these laws was altered in the reign of Edward III. That + monarch, in view of his intended invasion of France, secured the adhesion + of the landowners, by giving them power to raise money upon and alien + their estates. The permission was as follows, 1 Edward III., cap. 12: + </p> + <p> + "Whereas divers people of the realm complain themselves to be grieved + because that lands and tenements which be holden of the king in chief, and + aliened without license, have been seized into the king's hand, and holden + as forfeit: (2.) The king shall not hold them as forfeit in such case, but + will and grant from henceforth of such lands and tenements so aliened, + there shall be reasonable fine taken in chancery by due process." + </p> + <p> + 1 Edward III., cap. 13: + </p> + <p> + "Whereas divers have complained that they be grieved by reason of + purchasing of lands and tenements, which have been holden of the king's + progenitors that now is, as of honors; and the same lands have been taken + into the king's hands, as though they had been holden in chief of the king + as of his crown: (2.) The king will that from henceforth no man be grieved + by any such purchase." + </p> + <p> + De Lolme, chap. iii., sec. 3, remarks on these laws that they took from + the king all power of preventing alienation or of purchase. They left him + the reversionary right on the failure of heirs. + </p> + <p> + These changes in the relative power of the sovereign and the nobles took + place to enable Edward to enter upon the conquest of France; but that + monarch, conferred a power upon the barons, which was used to the + detriment of his descendants, and led to the dethronement of the + Plantagenets. + </p> + <p> + The line of demarcation between the two sets of titles, those derived + through the ANGLO-SAXON laws and those derived through the grants of the + Norman sovereigns, was gradually being effaced. The people looked back to + the laws of Edward the Confessor, and forced them upon Edward II. But + after passing the laws which prevented nobles from selling, and empowering + FREEMEN to do so, Edward III. found it needful to assert his claims to the + entire land of England, and enacted in the twenty-fourth year of his + reign: + </p> + <p> + "That the king is the universal lord and original proprietor of all land + in his kingdom; that no man doth or can possess, any part of it but what + has mediately or immediately been derived as a gift from him to be held on + feodal service." + </p> + <p> + Those who obtained gifts of land, only held or had the use of them; the + ownership rested in the Crown. Feodal service, the maintenance of armed + men, and the bringing them into the field, was the rent paid. + </p> + <p> + The wealth which came into England after the conquest of France influenced + all classes, but none more than the family of the king. His own example + seems to have affected his descendants. The invasion of France and the + captivity of its king reappear in the invasion of England by Henry IV., + and the capture and dethronement of Richard II. The prosperity of England + during the reign of Edward had passed away in that of his grandson. Very + great distress pervaded the land, and it led to efforts to get rid of + villeinage. The 1st Richard II. recites: + </p> + <p> + "That grievous complaints had been made to the Lords and Commons, that + villeins and land tenants daily withdraw into cities and towns, and a + special commission was appointed to hear the case, and decide thereon." + </p> + <p> + The complaint was renewed, and appears in Act 9 Richard II., cap. 2: + </p> + <p> + "Whereas divers villeins and serfs, as well of the great Lords as of other + people, as well spiritual as temporal, do fly within the cities, towns, + and places entfranched, as the city of London, and other like, and do + feign divers suits against their Lords, to the intent to make them free by + the answer of the Lords, it is accorded and assented that the Lords and + others shall not be forebound of their villeins, because of the answer of + the Lords." + </p> + <p> + Serfdom or slavery may have existed previous to the ANGLO-SAXON invasion, + but I am disposed to think that the Saxon, the Jutes, and the Angles + reduced the inhabitants of the lands which they conquered, into serfdom. + The history of that period shows that men, women, and children were + constantly sold, and that there were established markets. One at Bristol, + which was frequented by Irish buyers, was put down, owing to the + remonstrance of the Bishop. After the Norman invasion the name of Villein, + a person attached to the villa, was given to the serfs. The village was + their residence. Occasional instances of enfranchisement took place; the + word signified being made free, and at that time every FREEMAN was + entitled to a vote. The word enfranchise has latterly come to bear a + different meaning, and to apply solely to the possession of a vote, but it + originally meant the elevation of a serf into the condition of a FREEMAN. + The act of enfranchisement was a public ceremony usually performed at the + church door. The last act of ownership performed by the master was the + piercing of the right ear with an awl. Many serfs fled into the towns, + where they were enfranchised and became FREEMEN. + </p> + <p> + The disaffection of the common people increased; they were borne down with + oppression. They struggled against their masters, and tried to secure + their personal liberty, and the freedom of their land. The population rose + in masses in the reign of Richard II., and demanded— + </p> + <p> + 1st. The total abolition of slavery for themselves and their children + forever; + </p> + <p> + 2d. The reduction of the rent of good land to 4d. per acre; + </p> + <p> + 3d. The right of buying and selling, like other men, in markets and fairs; + </p> + <p> + 4th. The pardon of all offences. + </p> + <p> + The monarch acted upon insidious advice; he spoke them fair at first, to + gain time, but did not fulfil his promises. Ultimately the people gained + part of their demands. To limit or defeat them, an act was passed, fixing + the wages of laborers to 4d. per day, with meat and drink, or 6d. per day, + without meat and drink, and others in proportion; but with the proviso, + that if any one refused to serve or labor on these terms, every justice + was at liberty to send him to jail, there to remain until he gave security + to serve and labor as by law required. A subsequent act prevents their + being employed by the week, or paid for holidays. + </p> + <p> + Previous to this period, the major barons and great lords tilled their + land by serfs, and had very large flocks and herds of cattle. On the death + of the Bishop of Winchester, 1367, his executors delivered to Bishop + Wykeham, his successor in the see, the following: 127 draught horses, 1556 + head of cattle, 3876 wedders, 4777 ewes, and 3541 lambs. Tillage was + neglected; and in 1314 there was a severe dearth; wheat sold at a price + equal to L30 per quarter, the brewing of ale was discontinued by + proclamation, in order "to prevent those of middle rank from perishing for + want of food." + </p> + <p> + The dissensions among the descendants of Edward III. as to the right to + the Crown aided the nobles in their efforts to make their estates + hereditary, and the civil wars which afflicted the nation tended to + promote that object. Kings were crowned and discrowned at the will of the + nobles, who compelled the FREEMEN to part with their small estates. The + oligarchy dictated to the Crown, and oppressed and kept down the FREEMEN. + The nobles allied themselves with the serfs, who were manumitted that they + might serve as soldiers in the conflicting armies. + </p> + <p> + From the Conquest to the time of Richard II., only barons-by-tenure, the + descendants of the companions of the Conqueror, were invited by writ to + Parliament. That monarch made an innovation, and invited others who were + not barons-by-tenure. The first dukedom was created the 11th of Edward + III., and the first viscount the 18th Henry VI. + </p> + <p> + Edward IV. seized upon the lands granted by former kings, and gave them to + his own followers, and thus created a feeling of uneasiness in the minds + of the nobility, and paved the way for the events which were accomplished + by a succeeding dynasty. The decision in the Taltarum case opened the + question of succession; and Edward's efforts to put down retainers was the + precursor of the Tudor policy. + </p> + <p> + We have a picture of the state of society in the reign of Edward IV. in + the Paston Memoirs, written by Margaret Paston. Her husband, John Paston, + was heir to Sir John Fastolf. He was bound by the will to establish in + Caister Castle, Fastolf s own mansion, a college of religious men to pray + for his benefactor's soul. But in those days might was right, and the Duke + of Norfolk, fancying that he should like the house for himself, quietly + took possession of it. At that time, Edward was just seated on the throne, + and Edward had just been reported to Paston to have said in reference to + another suit, that + </p> + <p> + "He would be your good lord therein as he would to the poorest man in + England. He would hold with you in your right; and as for favor, he will + not be understood that he shall show favor more to one man to another, not + to one in England." + </p> + <p> + This was a true expression of the king's intentions. But either he was + changeable in his moods, or during these early years he was hardly settled + enough on the throne always to be able to carry out his wishes. This time, + however, in some way or another, the great duke was reduced to submission, + and Caister was restored to Paston. + </p> + <p> + In 1465 a new claimant appeared; and claimants, though as troublesome in + the fifteenth as the nineteenth century, proceeded in a different fashion. + This time it was the Duke of Suffolk, who asserted a right to the manor of + Drayton in his own name, and who had bought up the assumed rights of + another person to the manor of Hellesdon. John Paston was away, and his + wife had to bear the brunt. An attempt to levy rent at Drayton was + followed by a threat from the duke's men, that if her servants "ventured + to take any further distresses at Drayton, even if it were but of the + value of a pin, they would take the value of an ox in Hellesdon." + </p> + <p> + Paston and the duke alike professed to be under the law. But each was + anxious to retain that possession which in those days seems really to have + been nine points of the law. The duke got hold of Drayton, while Hellesdon + was held for Paston. One day Paston's men made a raid upon Drayton, and + carried off seventy-seven head of cattle. Another day the duke's bailiff + came to Hellesdon with 300 men to see if the place were assailable. Two + servants of Paston, attempting to keep a court at Drayton in their + master's name, were carried off by force. At last the duke mustered his + retainers and marched against Hellesdon. The garrison, too weak to resist, + at once surrendered. + </p> + <p> + "The duke's men took possession, and set John Paston's own tenants to + work, very much against their wills, to destroy the mansion and break down + the walls of the lodge, while they themselves ransacked the church, turned + out the parson, and spoiled the images. They also pillaged very completely + every house in the village. As for John Paston's own place, they stripped + it completely bare; and whatever there was of lead, brass, pewter, iron, + doors or gates, or other things that they could not conveniently carry + off, they hacked and hewed them to pieces. The duke rode through Hellesdon + to Drayton the following day, while his men were still busy completing the + wreck of destruction by the demolition of the lodge. The wreck of the + building, with the rents they made in its walls, is visible even now" + (Introd. xxxv.). + </p> + <p> + The meaning of all this is evident. We have before us a state of society + in which the anarchical element is predominant. But it is not pure + anarchy. The nobles were determined to reduce the middle classes to + vassalage. + </p> + <p> + The reign of the Plantagenets witnessed the elevation of the nobility. The + descendants of the Norman barons menaced, and sometimes proved too + powerful for the Crown. In such reigns as those of Edward I., Edward III., + and Henry VI., the barons triumphed. The power wielded by the first Edward + fell from the feeble grasp of his son and successor. The beneficent rule + of Edward III. was followed by the anarchy of Richard II. Success led to + excess. The triumphant party thinned the ranks of its opponents, and in + turn experienced the same fate. The fierce struggle of the Red and White + Roses weakened each. Guy, Earl of Warwick, "the king-maker," sank + overpowered on the field of Tewkesbury, and with him perished many of the + most powerful of the nobles. The jealousy of Richard III. swept away his + own friends, and the bloody contest on Bosworth field destroyed the flower + of the nobility. The sun of the Plantagenets went down, leaving the + country weak and impoverished, from a contest in which the barons sought + to establish their own power, to the detriment alike of the Crown and the + FREEMEN. The latter might have exclaimed: + </p> + <p> + "Till half a patriot, half a coward, grown, We fly from meaner tyrants to + the throne." + </p> + <p> + The long contest terminated in the defeat alike of the Crown and the + nobles, but the nation suffered severely from the struggle. + </p> + <p> + The rule of this family proved fatal to the interest of a most important + class, whose rights were jealously guarded by the Normans. The Liberi + Homines, the FREEMEN, who were Odhal occupiers, holding in capite from the + sovereign, nearly disappeared in the Wars of the Roses. Monarchs who owed + their crown to the favor of the nobles were too weak to uphold the rights + of those who held directly from the Crown, and who, in their isolation, + were almost powerless. + </p> + <p> + The term FREEMAN, originally one of the noblest in the land, disappeared + in relation to urban tenures, and was applied solely to the personal + rights of civic burghers; instead thereof arose the term FREEHOLDER from + FREE HOLD, which was originally a grant free from all rent, and only + burdened with military service. The term was subsequently applied to land + held for leases for lives as contradistinguished from leases for years, + the latter being deemed base tenures, and insufficient to qualify a man to + vote; the theory being that no man was free whose tenure could be + disturbed during his life. Though the Liberi Homines or FREEMEN were, as a + class, overborne in this struggle, and reduced to vassalage, yet their + descendants were able, under the leadership of Cromwell, to regain some of + the rights and influence of which they had been despoiled under the + Plantagenets. + </p> + <p> + Fortescue, Lord Chief-Justice to Henry VI., thus describes the condition + of the English people: + </p> + <p> + "They drunk no water, unless it be that some for devotion, and upon a rule + of penance, do abstain from other drink. They eat plentifully of all kinds + of flesh and fish. They wear woollen cloth in all their apparel. They have + abundance of bed covering in their houses, and all other woollen stuff. + They have great store of all implements of household. They are plentifully + furnished with all instruments of husbandry, and all other things that are + requisite to the accomplishment of a great and wealthy life, according to + their estates and degrees." + </p> + <p> + This flattering picture is not supported by the existing disaffection and + the repeated applications for redress from the serfs and the smaller + farmers, and the simple fact that the population had increased under the + Normans—a period of 88 years—from 2,150,000 to 3,350,000, + while under the Plantagenets—a period of 300 years—it only + increased to 4,000,000, the addition to the population in that period + being only 650,000. The average increase in the former period was nearly + 14,000 per annum, while in the latter it did not much exceed 2000 per + annum. This goes far to prove the evil from civil wars, and the oppression + of the oligarchy. + </p> + <p> + <a name="link2H_4_0007" id="link2H_4_0007"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + VI. THE TUDORS + </h2> + <p> + The protracted struggle of the Plantagenets left the nation in a state of + exhaustion. The nobles had absorbed the lands of the FREEMEN, and had thus + broken the backbone of society. They had then entered upon a contest with + the Crown to increase their own power; and to effect their selfish + objects, setup puppets, and ranged under conflicting banners, but the + Nemesis followed. The Wars of the Roses destroyed their own power, and + weakened their influence, by sweeping away the heads of the principal + families. The ambition of the nobles failed of its object, when "the last + of the barons" lay gory in his blood on the field of Tewkesbury. The wars + were, however, productive of one national benefit, in virtually ending the + state of serfdom to which the aborigines were reduced by the Scandinavian + invasion. The exhaustion of the nation prepared the way to changes of a + most radical character, and the reigns of the Tudors are characterized by + greater innovations and more striking alterations than even those which + followed the accession of the Normans. + </p> + <p> + Henry of Richmond came out of the field of Bostworth a vistor, and + ascended the throne of a nation whose leading nobles had been swept away. + The sword had vied with the axe. Henry VII. was prudent and cunning; and + in the absence of any preponderating oligarchical influence, planted the + heel of the sovereign upon the necks of the nobles. He succeeded where the + Plantagenets had failed. His accession became the advent of a series of + measures which altered most materially the system of landholding. The Wars + of the Roses showed that the power of the nobles was too great for the + comfort of the monarch. The decision in Taltarum's case, in the reign of + Edward IV., affected the entire system of entail. Land, partly freed from + restrictions, passed into other hands. But Henry went further. He + destroyed their physical influence by ridigly putting down retainer; and + in one of his tours, while partaking of the hospitality of the Earl of + Oxford, he fined him L15,000 for having greeted him with 5000 of his + tenants in livery. The rigid enforcement of the laws passed against + retainers in former reigns, but now made more penal, strengthened the king + and reduced the power of the nobles. Their estates were relieved of a most + onerous charge, and the lands freed from the burden of supporting the army + of the state. + </p> + <p> + Henry VII. had thus a large fund to give away; the rent of the land + granted in knights' service virtually consisted of two separate funds—one + part went to the feudee, as officer or commmandant, the other to the + soldiery or vassals. The latter part belonged to the state. Had Henry + applied it to the reestablishment of the class of FREEMEN (LIBERI + HOMINES), as was recently done by the Emperor of Russia when he abolished + serfdom, he would have created a power on which the Crown and the + constitution could rely. This might have been done by converting the + holdings of the men-at-arms into allodial estates, held direct from the + Crown. Such an arrangement would have left the income of the feudee + unimpaired, as it would only have applied the fund that had been paid to + the men-at-arms to this purpose; and by creating out of that land a number + of small estates held direct from the Crown, the misery that arose from + the eviction and destruction of a most meritorious class, would have been + avoided. Vagrancy, with its great evils, would have been prevented, and + the passing of the Poor laws would have been unnecessary. Unfortunately + Henry and his counsellors did not appreciate the consequence of the + suppression of retainers and liveries. By the course he adopted to secure + the influence of the Crown, he compensated the nobles, but destroyed the + agricultural middle class. + </p> + <p> + This change had an important and, in some respects, a most injurious + effect upon the condition of the nation, and led to enactments of a very + extraordinary character, which I must submit in detail, inasmuch as I + prefer giving the ipsissima verba of the statute-book to any statement of + my own. To make the laws intelligible, I would remind you that the + successful efforts of the nobles had, during the three centuries of + Plantagenet rule, nearly obliterated the LIBERI HOMINES (whose rights the + Norman conqueror had sedulously guarded), and had reduced them to a state + of vassalage. They held the lands of their lord at his will, and paid + their rent by military service. When retainers were put down, and rent or + knights' service was no longer paid with armed men, their occupation was + gone. They were unfit for the mere routine of husbandry, and unprovided + with funds for working their farms. The policy of the nobles was changed. + It was no longer their object to maintain small farmsteads, each supplying + its quota of armed men to the retinue of the lord; and it was their + interest to obtain money rents. Then commenced a struggle of the most + fearful character. The nobles cleared their lands, pulled down the houses, + and displaced the people. Vagrancy, on a most unparalleled scale, took + place. Henry VII., to check this cruel, unexpected, and harsh outcome of + his own policy, resorted to legislation, which proved nearly ineffectual. + As early as the fourth year of his reign these efforts commenced with an + enactment (cap. 19) for keeping up houses and encouraging husbandry; it is + very quaint, and is as follows: + </p> + <p> + "The King, our Sovereign Lord, having singular pleasure above all things + to avoid such enormities and mischiefs as be hurtful and prejudicial to + the commonwealth of this his land and his subjects of the same, + remembereth that, among other things, great inconvenience daily doth + increase by dissolution, and pulling down, and wilful waste of houses and + towns within this his realm, and laying to pasture lands, which + continually have been in tilth, WHEREBY IDLENESS, THE GROUND AND BEGINNING + OF ALL MISCHIEF, daily do increase; for where, in some towns 200 persons + were occupied, and lived by those lawful labors, now there be occupied two + or three herdsmen, and the residue full of idleness. The husbandry, which + is one of the greatest commodities of the realm, is greatly decayed. + Churches destroyed, the service of God withdrawn, the bodies there buried + not prayed for, the patrons and curates wronged, the defence of the land + against outward enemies feebled and impaired, to the great displeasure of + God, the subversion of the policy and good rule of this land, if remedy be + not hastily therefor purveyed: Wherefore, the King, our Sovereign Lord, by + the assent and advice, etc., etc., ordereth, enacteth, and establisheth + that no person, what estate, degree, or condition he be, that hath any + house or houses, that at any time within the past three years hath been, + or that now is, or heretofore shall be, let to farm with twenty acres of + land at least, or more, laying in tillage or husbandry; that the owners of + any such house shall be bound to keep, sustain, and maintain houses and + buildings, upon the said grounds and land, convenient and necessary for + maintaining and upholding said tillage and husbandry; and if any such + owner or owners of house or house and land take, keep, and occupy any such + house or house and land in his or their own hands, that the owner of the + said authority be bound in likewise to maintain houses and buildings upon + the said ground and land, convenient and necessary for maintaining and + upholding the said tillage and husbandry. On their default, the king, or + the other lord of the fee, shall receive half of the profits, and apply + the same in repairing the houses; but shall not gain the freehold + thereby." + </p> + <p> + This act was preceded by one with reference to the Isle of Wight, 4 Henry + VII., cap. 16, passed the same session, which recites that it is so near + France that it is desirable to keep it in a state of defence. It provides + that no person shall have more than one farm, and enacts: + </p> + <p> + "For remedy, it is ordered and enacted that no manner of person, of what + estate, degree, or condition soever, shall take any farm more than one, + whereof the yearly rent shall not exceed ten marks; and if any several + leases afore this time have been made to any person or persons of divers + and sundry farmholds whereof the yearly value shall exceed that sum, then + the said person or persons shall choose one farm, hold at his pleasure, + and the remnant of the leases shall be void." + </p> + <p> + Mr. Froude remarks (History, p. 26), "An act, tyrannical in form, was + singularly justified by its consequences. The farm-houses were rebuilt, + the land reploughed, the island repeopled; and in 1546, when the French + army of 60,000 men attempted to effect a landing at St. Helens, they were + defeated and driven back by the militia, and a few levies transported from + Hampshire and the surrounding counties." + </p> + <p> + Lord Bacon, in his "History of the Reign of Henry VII., says: + </p> + <p> + "Enclosures, at that time, began to be more frequent, whereby arable land + (which could not be manured without people and families) was turned into + pasture, which was easily rid by a few herdsmen; and tenancies for years, + lives, and at will (whereupon much of the yeomanry lived) were turned into + demesnes. This bred a decay of people and (by consequence) a decay of + towns, churches, tithes, and the like. The king, likewise, knew full well, + and in nowise forgot, that there ensued withal upon this a decay and + diminution of subsidies and taxes; for the more gentlemen, ever the lower + books of subsidies. In remedying of this inconvenience, the king's wisdom + was admirable, and the parliaments at that time. Enclosures they would not + forbid, for that had been to forbid the improvement of the patrimony of + the kingdom; nor tillage they would not compel, for that was to strive + with nature and utility; but they took a course to take away depopulating + enclosures and depopulating pasturage, and yet not by that name, or by any + imperious express prohibition, but by consequence. The ordinance was, that + all houses of husbandry, that were used with twenty acres of ground and + upward, should be maintained and kept up for ever, together with a + competent proportion of land to be used and occupied with them; and in + nowise to be severed from them, as by another statute made afterward in + his successor's time, was more fully declared: this, upon forfeiture to be + taken, not by way of popular action, but by seizure of the land itself, by + the king and lords of the fee, as to half the profits, till the houses and + land were restored. By this means the houses being kept up, did of + necessity enforce a dweller; and the proportion of the land for occupation + being kept up, did of necessity enforce that dweller not to be a beggar or + cottager, but a man of some substance, that might keep hinds and servants, + and set the plough a-going. This did wonderfully concern the might and + mannerhood of the kingdom, to have farms, as it were, of a standard + sufficient to maintain an able body out of penury, and did, in effect, + amortise a great part of the lands of the kingdom unto the hold and + occupation of the yeomanry or middle people, of a condition between + gentlemen and cottagers or peasants. Now, how much this did advance the + military power of the kingdom, is apparent by the true principles of war, + and the examples of other kingdoms. For it hath been held by the general + opinion of men of best judgment in the wars (howsoever some few have + varied, and that it may receive some distinction of case), that the + principal strength of an army consisteth in the infantry or foot. And to + make good infantry, it requireth men bred, not in a servile or indigent + fashion, but in some free and plentiful manner. Therefore, if a state run + most to noblemen and gentlemen, and that the husbandman and ploughman be + but as their workfolks and laborers, or else mere cottagers (which are but + housed beggars), you may have a good cavalry, but never good stable bands + of foot; like to coppice woods, that if you leave in them standing too + thick, they will run to bushes and briars, and have little clean + underwood. And this is to be seen in France and Italy, and some other + parts abroad, where in effect all is nobles or peasantry. I speak of + people out of towns, and no middle people; and therefore no good forces of + foot: insomuch as they are enforced to employ mercenary bands of Switzers + and the like for their battalions of foot, whereby also it comes to pass, + that those nations have much people and few soldiers. Whereas the king saw + that contrariwise it would follow, that England, though much less in + territory, yet should have infinitely more soldiers of their native forces + than those other nations have. Thus did the king secretly sow Hydra's + teeth; whereupon (according to the poet's fiction) should rise up armed + men for the service of this kingdom." + </p> + <p> + The enactment above quoted was followed by others in that reign of a + similar character, but it would appear they were not successful. The evil + grew apace. Houses were pulled down, farms went out of tillage. The + people, evicted from their farms, and having neither occupation nor means + of living, were idle, and suffering. Succeeding sovereigns strove also to + check this disorder? and statute after statute was passed. Among them are + the 7th Henry VIII., cap. 1. It recites: + </p> + <p> + "That great inconveniency did daily increase by dissolution, pulling down, + and destruction of houses, and laying to pasture, lands which customarily + had been manured and occupied with tillage and husbandry, whereby idleness + doth increase; for where, in some town-lands, hundreds of persons and + their ancestors, time out of mind, were daily occupied with sowing of corn + and graynes, breeding of cattle, and other increase of husbandry, that now + the said persons and their progeny are disunited and decreased. It further + recites the evil consequences resulting from this state of things, and + provides that all these buildings and habitations shall be re-edificed and + repaired within one year; and all tillage lands turned into pasture shall + be again restored into tillage; and in default, half the value of the + lands and houses forfeited to the king, or lord of the fee, until they + were re-edificed. On failure of the next lord, the lord above him might + seize." + </p> + <p> + This act did not produce that increased tilth which was anticipated. + Farmers' attention was turned to sheepbreeding; and in order to supply the + deficiency of cattle, an act was passed in the 21st Henry VIII., to + enforce the rearing of calves; and every farmer was, under a penalty of + 6s. 8d. (about L3 of our currency), compelled to rear all his calves for a + period of three years; and in the 24th Henry VIII. the act was further + continued for two years. The culture of flax and hemp was also encouraged + by legislation. The 24th Henry VIII., cap. 14, requires every person + occupying land apt for tillage, to sow a quarter of an acre of flax or + hemp for every sixty acres of land, under a penalty of 3s. 4d. + </p> + <p> + The profit which arose from sheep-farming led to the depasturage of the + land; and in order to check it, an act, 25 Henry VIII., cap. 13, was + passed. It commences thus: + </p> + <p> + "Forasmuch as divers and sundry persons of the king's subjects of this + realm, to whom God of His goodness hath disposed great plenty and + abundance of movable substance, now of late, within few years, have daily + studied, practised, and invented ways and means how they might gather and + accumulate together into few hands, as well great multitude of farms, as + great plenty of cattle and in especial sheep, putting such lands as they + can get to pasture and not to tillage: whereby they have not only pulled + down churches and towns, and enhanced the old rates of the rents of + possessions of this realm, or else brought it to such excessive fines that + no poor man is able to meddle with it, but have also raised and enhanced + the prices of all manner of corn, cattle, wool, pigs, geese, hens, + chickens, eggs, and such commodities almost double above the prices which + hath been accustomed, by reason whereof a marvellous multitude of the poor + people of this realm be not able to provide meat, drink, and clothes + necessary for themselves, their wives, and children, but be so discouraged + with misery and poverty, that they fall daily to theft, robbery, and other + inconveniences, or pitifully die for hunger and cold; and it is thought by + the king's humble and loving subjects, that one of the greatest occasions + that moveth those greedy and covetous people so to accumulate and keep in + their hands such great portions and parts of the lands of this realm from + the occupying of the poor husbandmen, and so use it in pasture and not in + tillage, is the great profit that cometh of sheep, which be now come into + a few persons' hands, in respect of the whole number of the king's + subjects, so that some have 24,000, some 20,000, some 10,000, some 6000, + some 5000, and some more or less, by which a good sheep for victual, which + was accustomed to be sold for 2s. 4d. or 3s. at most, is now sold for 6s., + 5s., or 4s. at the least; and a stone of clothing wool, that in some shire + of this realm was accustomed to be sold from 16d. to 20d, is now sold for + 4s. or 3s. 4d. at the least; and in some counties, where it has been sold + for 2s. 4d. to 2s. 8d., or 3s. at the most, it is now 5s. or 4s. 8d. at + the least, and so arreysed in every part of the realm, which things thus + used to be principally to the high displeasure of Almighty God, to the + decay of the hospitality of this realm, to the diminishing king's people, + and the let of the cloth making, whereby many poor people hath been + accustomed to be set on work; and in conclusion, if remedy be not found, + it may turn to the utter destruction and dissolution of this realm which + God defend." + </p> + <p> + It was enacted that no person shall have or keep on lands not their own + inheritance more than 2000 sheep, under a penalty of 3s. 4d. per annum for + each sheep; lambs under a year old not to be counted; and that no person + shall occupy two farms. + </p> + <p> + Further measures appeared needful to prevent the evil; and the 27th Henry + VIII., cap. 22, states that the 4th Henry VII., cap. 19, for keeping + houses in repair, and for the tillage of the land, had been enforced on + lands holden of the king, but neglected by other lords. It, therefore, + enacted that the king shall have the moiety of the profits of lands + converted from tillage to pasture, since the passing of the 4th Henry + VII., until a proper house is built, and the land returned to tillage; and + in default of the immediate lord taking the profits as under that act, the + king might take the same. This act extended to the counties of Lincoln, + Nottingham, Leicester, Warwick, Rutland, Northampton, Bedford, Buckingham, + Oxford, Berkshire, Isle of Wight, Hertford, and Cambridge. + </p> + <p> + The simple fact was, that those who had formerly paid the rent of their + land by service as soldiers were without the capital or means of paying + rent in money; they were evicted and became vagrants. Henry VIII. took a + short course with these vagrants, and it is asserted upon apparently good + authority that in the course of his reign, thirty-six years, he hanged no + less than 72,000 persons for vagrancy, or at the rate of 2000 per annum. + The executions in the reign of his daughter, Queen Elizabeth, had fallen + to from 300 to 400 per annum. + </p> + <p> + 32 Henry VIII., cap. 1, gave powers of bequest with regard to land; as it + explains the change it effected, I quote it: + </p> + <p> + "That all persons holding land in socage not having any lands holden by + knight service of the king in chief, be empowered to devise and dispose of + all such socage lands, and in like case, persons holding socage lands of + the king in chief, and also of others, and not having the lands holden by + knight service, saving to the king, all his right, title, and interest for + primer seizin, reliefs, fines for alienations, etc. Persons holding lands + of the king by knight's service in chief were authorized to devise two + third parts thereof, saving to the king wardship, primer seizin, of the + third paid, and fines for alienation of the whole lands. Persons holding + lands by knight's service in chief, and also other lands by knight's + service, or otherwise may in like manner devise two third part thereof, + saving to the king wardship of the third, and fines for alienation of the + whole. Persons holding land of others than the king by knight's service, + and also holding socage lands, may devise two third parts of the former + and the whole of the latter, saving to the lord his wardship of the third + part. Persons holding lands of the king by knight's service but not in + chief, or so holding of the king and others, and also holding socage + lands, may in like manner devise two thirds of the former and the whole of + the latter, saving to the king the wardship of the third part, and also to + the lords; and the king or the other lords were empowered to seize the one + third part in case of any deficiency." + </p> + <p> + The 34th and 35th Henry VIII., cap. 5, was passed to remove some doubts + which had arisen as to the former statute; it enacts: + </p> + <p> + "That the words estates of inheritance should only mean estates in + fee-simple only, and empowers persons seized of any lands, etc., in + fee-simple solely, or in co-partnery (not having any lands holden of + knight's service), to devise the whole, except corporations. Persons + seized in fee-simple of land holden of the king by knight's service may + give or devise two thirds thereof, and of his other lands, except + corporation, such two thirds to be ascertained by the divisor or by + commission out of the Court of Ward and Liveries. The king was empowered + to take his third land descended to the heir in the first place, the + devise in gift remaining good for the two thirds; and if the land + described were insufficient to answer such third, the deficiency should be + made up out of the two thirds." + </p> + <p> + "The next attack," remarks Sir William Blackstone, vol. ii., p. 117, + "which they suffered in order of time was by the statute 32 Henry VIII., + c. 28, whereby certain leases made by tenants in tail, which do not tend + to prejudice the issue, were allowed to be good in law and to bind the + issue in tail. But they received a more violent blow the same session of + Parliament by the construction put upon the statute of fines by the + statute 32 Henry VIII., cap. 36, which declares a fine duly levied by + tenant in tail to be a complete bar to him and his heirs and all other + persons claiming under such entail. This was evidently agreeable to the + intention of Henry VII., whose policy was (before common recovery had + obtained their full strength and authority) to lay the road as open as + possible to the alienation of landed property, in order to weaken the + overgrown power of his nobles. But as they, from the opposite reasons, + were not easily brought to consent to such a provision, it was therefore + couched in his act under covert and obscure expressions; and the judges, + though willing to construe that statute as favorably as possible for the + defeating of entailed estates, yet hesitated at giving fines so extensive + a power by mere implication when the statute DE DONIS had expressly + declared that they should not be a bar to estates-tail. But the statute of + Henry VIII., when the doctrine of alienation was better received, and the + will of the prince more implicitly obeyed than before, avowed and + established that intention." + </p> + <p> + Fitzherbert, one of the judges of the Common Pleas in the reign of Henry + VIII., wrote a work on surveying and husbandry. It contains directions for + draining, clearing, and inclosing a farm, and for enriching the soil and + reducing it to tillage. Fallowing before wheat was practised, and when a + field was exhausted by grain it was allowed to rest. Hollingshed estimated + the usual return as 16 to 20 bushels of wheat per acre; prices varied very + greatly, and famine was of frequent recurrence. Leases began to be + granted, but they were not effectual to protect the tenant from the entry + of purchasers nor against the operation of fictitious recoveries. + </p> + <p> + In the succeeding reigns the efforts to encourage tillage and prevent the + clearing of the farms were renewed, and among the enactments passed were + the following: + </p> + <p> + 5 Edward VI., cap. 5, for the better maintenance of tillage and increase + of corn within the realm, enacts: + </p> + <p> + "That there should be, in the year 1553, as much land, or more, put wholly + in tillage as had been at any time since the 1st Henry VIII., under a + penalty of 5s. per acre to the king; and in order to secure this, it + appoints commissioners, who were bound to ascertain by inquests what land + was in tillage and had been converted from tillage into pasture. The + commission issued precepts to the sheriffs, who summoned jurors, and the + inquests were to be returned, certified, to the Court of Exchequer. Any + prosecution for penalties should take place within three years, and the + act continues for ten years." + </p> + <p> + 2 and 3 Philip and Mary, cap. 2, recites the former acts of 4 Henry VII., + cap. 19, etc,, which it enforces. It enacts: + </p> + <p> + "That as some doubts had arisen as to the interpretation of the words + twenty acres of land, the act should apply to houses with twenty acres of + land, according to the measurement of the ancient statute; and it appoints + commissioners to inquire as to all houses pulled down and all land + converted from pasture into tillage since the 4th Henry VII. The + commissioners were to take security by recognizance from offenders, and to + re-edify the houses and re-convert the land into tillage, and to assess + the tenants for life toward the repairs. The amount expended under order + of the commissioners was made recoverable against the estate, and the + occupiers were made liable to their orders; and they had power to commit + persons refusing to give security to carry out the act." + </p> + <p> + 2 and 3 Philip and Mary, cap. 3, was passed to provide for the increase of + milch cattle, and it enacts: + </p> + <p> + "That one milch-cow shall be kept and calf reared for every sixty sheep + and ten oxen during the following seven years." + </p> + <p> + The 2d Elizabeth, cap. 2, confirms the previously quoted acts of 4 Henry + VII., cap. 19; 7 Henry VIII., cap. 1; 27 Henry VIII., cap. 22; 27 Henry + VIII., cap. 18; and it enacts: + </p> + <p> + "That all farm-houses belonging to suppressed monasteries should be kept + up, and that all lands which had been in tillage for four years + successively at any time since the 20th Henry VIII., should be kept in + tillage under a penalty of 10s. per acre, which was payable to the heir in + reversion, or in case he did not levy it, to the Crown." + </p> + <p> + 31 Elizabeth, cap. 7, went further; and in order to provide allotments for + the cottagers, many of whom were dispossessed from their land, it + provided: + </p> + <p> + "For avoiding the great inconvenience which is found by experience to grow + by the erecting and building of great number of cottages, which daily more + and more increased in many parts of the realm, it was enacted that no + person should build a cottage for habitation or dwelling, nor convert any + building into a cottage, without assigning and laying thereto four acres + of land, being his own freehold and inheritance, lying near the cottage, + under a penalty of L10; and for upholding any such cottages, there was a + penalty imposed of 40s. a month, exception being made as to any city, + town, corporation, ancient borough, or market town; and no person was + permitted to allow more than one family to reside in each cottage, under a + penalty of 10s. per month." + </p> + <p> + The 39th Elizabeth, cap. 2, was passed to enforce the observance of these + conditions. It provides: + </p> + <p> + "That all lands which had been in tillage shall be restored thereto within + three years, except in cases where they were worn out by too much tillage, + in which case they might be grazed with sheep; but in order to prevent the + deterioriation of the land, it was enacted that the quantity of beeves or + muttons sold off the land should not exceed that which was consumed in the + mansion-house." + </p> + <p> + In these various enactments of the Tudor monarchs we may trace the anxious + desire of these sovereigns to repair the mistake of Henry VII., and to + prevent the depopulation of England. A similar mistake has been made in + Ireland since 1846, under which the homes of the peasantry have been + prostrated, the land thrown out of tillage, and the people driven from + their native land. Mr. Froude has the following remarks upon this + legislation: + </p> + <p> + "Statesmen (temp. Elizabeth) did not care for the accumulation of capital. + They desired to see the physical well-being of all classes of the + commonwealth maintained in the highest degree which the producing power of + the country admitted. This was their object, and they were supported in it + by a powerful and efficient majority of the nation. At one time Parliament + interfered to protect employers against laborers, but it was equally + determined that employers should not be allowed to abuse their + opportunities; and this directly appears from the 4th and 5th Elizabeth, + by which, on the most trifling appearance of a diminution of the currency, + it was declared that the laboring man could no longer live on the wages + assigned to him by the Act of Henry VIII.; and a sliding scale was + instituted, by which, for the future, wages should be adjusted to the + price of food. The same conclusion may be gathered also indirectly fom the + acts interfering imperiously with the rights of property where a + disposition showed itself to exercise them selfishly. + </p> + <p> + "The city merchants, as I have said, were becoming landowners, and some of + them attempted to apply their rules of trade to the management of landed + estates. While wages were rated so high, it answered better as a + speculation to convert arable land into pasture, but the law immediately + stepped in to prevent a proceeding which it regarded as petty treason to + the state. Self-protection is the first law of life, and the country, + relying for its defence on an able-bodied population, evenly distributed, + ready at any moment to be called into action, either against foreign + invasion or civil disturbance, it could not permit the owners of land to + pursue, for their own benefit, a course of action which threatened to + weaken its garrisons. It is not often that we are able to test the wisdom + of legislation by specific results so clearly as in the present instance. + The first attempts of the kind which I have described were made in the + Isle of Wight early in the reign of Henry VII. Lying so directly exposed + to attacks by France, the Isle of Wight was a place which it was + peculiarly important to keep in a state of defence, and the 4th Henry + VII., cap. 16, was passed to prevent the depopulation of the Isle of + Wight, occasioned by the system of large farms." + </p> + <p> + The city merchants alluded to by Froude seem to have remembered that from + the times of Athelwolf, the possession of a certain quantity of land, with + gatehouse, church, and kitchen, converted the ceorl (churl) into a thane. + </p> + <p> + It is difficult to estimate the effect which the Tudor policy had upon the + landholding of England. Under the feudal system, the land was held in + trust and burdened with the support of the soldiery. Henry VII., in order + to weaken the power of the nobles, put an end to their maintaining + independent soldiery. Thus landlords' incomes increased, though their + material power was curtailed. It would not have been difficult at this + time to have loaded these properties with annual payments equal to the + cost of the soldiers which they were bound to maintain, or to have given + each of them a farm under the Crown, and strict justice would have + prevented the landowners from putting into their pockets those revenues + which, according to the grants and patents of the Conqueror and his + successors, were specially devoted to the maintenance of the army. Land + was released from the conditions with which it was burdened when granted. + This was not done by direct legislation but by its being the policy of the + Crown to prevent "king-makers" arising from among the nobility. The dread + of Warwick influenced Henry. He inaugurated a policy which transferred the + support of the army from the lands, which should solely have borne it, to + the general revenue of the country. Thus he relieved one class at the + expense of the nation. Yet, when Henry was about to wage war on the + Continent, he called all his subjects to accompany him, under pain of + forfeiture of their lands; and he did not omit levying the accustomed + feudal charge for knighting his eldest son and for marrying his eldest + daughter. The acts to prevent the landholder from oppressing the occupier, + and those for the encouragement of tillage, failed. The new idea of + property in land, which then obtained, proved too powerful to be altered + by legislation. + </p> + <p> + Another change in the system of landholding took place in those reigns. + Lord Cromwell, who succeeded Cardinal Wolsey as minister to Henry VIII., + had land in Kent, and he obtained the passing of an act (31 Henry VIII., + cap. 2) which took his land and that of other owners therein named, out of + the custom of gavelkind (gave-all-kind), which had existed in Kent from + before the Norman Conquest, and enacted that they should descend according + to common law in like manner as lands held by knight's service. + </p> + <p> + The suppression of the RELIGIOUS HOUSES gave the Crown the control of a + vast quantity of land. It had, with the consent of the Crown, been devoted + to religion by former owners. The descendants of the donors were equitably + entitled to the land, as it ceased to be applied to the trust for which it + was given, but the power of the Crown was too great, and their claims were + refused. Had these estates been applied to purposes of religion or + education they would have formed a valuable fund for the improvement of + the people; but the land itself, as well as the portion of tithes + belonging to the religious houses, was conferred upon favorites, and some + of the wealthiest nobles of the present day trace their rise and + importance to the rewards obtained by their ancestors out of the spoils of + these charities. + </p> + <p> + The importance of the measures of the Tudors upon the system of + land-holding can hardly be exaggerated. An impulse of self-defence led + them to lessen the physical force of the oligarchy by relieving the land + from the support of the army, and enabling them to convert to their own + use the income previously applied to the defence of the realm. This was a + bribe, but it brought its own punishment. The eviction of the working + farmers, the demolition of their dwellings, the depopulation of the + country, were evils of most serious magnitude; and the supplement of the + measures which produced such deplorable results was found in the permanent + establishment of a taxation for the SUPPORT of the POOR. Yet the nation + reeled under the depletion produced by previous mistaken legislation, and + all classes have been injured by the transfer of the support of the army + from the land held by the nobles to the income of the people. + </p> + <p> + Side by side, with the measures passed, to prevent the Clearing of the + Land, arose the system of POOR LAWS. Previous to the Reformation the poor + were principally relieved at the religious houses. The destruction of + small farms, and the eviction of such masses of the people, which + commenced in the reign of Henry VII., overpowered the resources of these + establishments; their suppression in the reigns of Henry VIII. and + Elizabeth aggravated the evil. The indiscriminate and wholesale execution + of the poor vagrants by the former monarch only partially removed the + evil, and the statute-book is loaded with acts for the relief of the + destitute poor. The first efforts were collections in the churches; but + voluntary alms proving insufficient, the powers of the churchwardens were + extended, and they were directed and authorized to assess the parishioners + according to their means, and thus arose a system which, though benevolent + in its object, is a slur upon our social arrangements. Land, the only + source of food, is rightly charged with the support of the destitute. The + necessity for such aid arose originally from their being evicted + therefrom. The charge should fall exclusively upon the rent receivers, and + in no case should the tiller of the soil have to pay this charge either + directly or indirectly. It is continued by the inadequacy of wages, and + the improvidence engendered by a social system which arose out of + injustice, and produced its own penalty. + </p> + <p> + Legislation with regard to the poor commenced contemporaneous with the + laws against the eviction of the small farmers. I have already recited + some of the laws to preserve small holdings; I now pass to the acts meant + to compel landholders to provide for those whom they had dispossessed. In + 1530 the act 22 Henry VIII., cap. 12, was passed; it recites: + </p> + <p> + "Whereas in all places through the realm of England, vagabonds and beggars + have of long time increased, and daily do increase, in great and excessive + numbers by THE OCCASION OF IDLENESS, THE MOTHER AND ROOT OF ALL VICES, + [Footnote: See 4 Henry VII., cap, 19, ante, p. 27, where the same + expression occurs, showing that it was throwing the land out of tilth that + occasioned pauperism.] whereby hath insurged and sprung, and daily + insurgeth and springeth, continual thefts, murders, and other heinous + offences and great enormities, to the high displeasure of God, the + inquietation and damage of the king and people, and to the marvellous + disturbance of the commonweal of the realm." + </p> + <p> + It enacts that justices may give license to impotent persons to beg within + certain limits, and, if found begging out of their limits, they shall be + set in the stocks. Beggars without license to be whipped or set in the + stocks. All persons able to labor, who shall beg or be vagrant, shall be + whipped and sent to the place of their birth. Parishes to be fined for + neglect of the constables. + </p> + <p> + 37 Henry VIII., cap. 23, continued this act to the end of the ensuing + Parliament. + </p> + <p> + 1 Edward VI., cap. 3, recites the increase of idle vagabonds, and enacts + that all persons loitering or wandering shall be marked with a V, and + adjudged a slave for two years, and afterward running away shall become a + felon. Impotent persons were to be removed to the place where they had + resided for three years, and allowed to beg. A weekly collection was to be + made in the churches every Sunday and holiday after reading the gospel of + the day, the amount to be applied to the relief of bedridden poor. + </p> + <p> + 5 and 6 Edward VI., cap. 2, directs the parson, vicar, curate, and + church-wardens, to appoint two collectors to distribute weekly to the + poor. The people were exhorted by the clergy to contribute; and, if they + refuse, then, upon the certificate of the parson, vicar, or curate, to the + bishop of the diocese, he shall send for them and induce him or them to + charitable ways. + </p> + <p> + 2 and 3 Philip and Mary, cap. 5, re-enacts the former, and requires the + collectors to account quarterly; and where the poor are too numerous for + relief, they were licensed by a justice of the peace to beg. + </p> + <p> + 5 Elizabeth, cap. 3, confirms and renews the former acts, and compels + collectors to serve under a penalty of L10. Persons refusing to contribute + their alms shall be exhorted, and, if they obstinately refuse, shall be + bound by the bishop to appear at the next general quarter session, and + they may be imprisoned if they refuse to be bound. + </p> + <p> + The 14th Elizabeth, cap. 5, requires the justices of the peace to register + all aged and impotent poor born or for three years resident in the parish, + and to settle them in convenient habitations, and ascertain the weekly + charge, and assess the amount on the inhabitants, and yearly appoint + collectors to receive and distribute the assessment, and also an overseer + of the poor. This act was to continue for seven years. + </p> + <p> + The 18th Elizabeth, cap. 3, provides for the employment of the poor. + Stores of wool, hemp, flax, iron, etc., to be provided in cities and + towns, and the poor set to work. It empowered persons possessed of land in + free socage to give or devise same for the maintenance of the poor. + </p> + <p> + The 39th Elizabeth, cap. 3, and the 43d Elizabeth, cap. 2, extended these + acts, and made the assessment compulsory. + </p> + <p> + I shall ask you to compare the date of these several laws for the relief + of the destitute poor with the dates of the enactments against evictions. + You will find they run side by side. + </p> +<pre xml:space="preserve"> + [Footnote: The following tables of the acts passed against + eviction, and enacting the support of the poor, show that + they were contemporaneous: + + Against Evictions. + 4 Henry VII., Cap. 19. + 7 Henry VIII, Cap. 1. + 21 Henry VIII, + 24 Henry VIII, Cap. 14. + 25 Henry VIII, Cap. 13. + 27 Henry VIII, Cap. 22. + 5 Edward VI., Cap. 2. + 2 and 3 Philip and Mary, Cap. 2. + 2 and 3 Philip and Mary, Cap. 3. + 2 Elizabeth, Cap. 2. + 31 Elizabeth, Cap. 7. + 39 Elizabeth, Cap. 2. +</pre> +<pre xml:space="preserve"> + Enacting Poor Laws. + 22 Henry VIII., Cap. 12. + 37 Henry VIII., Cap. 23. + 1 Edward VI., Cap. 3. + 5 and 6 Edward VI., Cap. 2. + 2 and 4 Philip and Mary, Cap. 5. + 5 Elizabeth, Cap. 3. + 14 Elizabeth, Cap. 5. + 18 Elizabeth, Cap. 3. + 39 Elizabeth, Cap. 3. + 43 Elizabeth, Cap. 2.] +</pre> + <p> + I have perhaps gone at too great length into detail; but I think I could + not give a proper picture of the alteration in the system of landholding + or its effects without tracing from the statute-book the black records of + these important changes. The suppression of monasteries tended greatly to + increase the sufferings of the poor, but I doubt if even these + institutions could have met the enormous pressure which arose from the + wholesale evictions of the people. The laws of Henry VII and Henry VIII., + enforcing the tillage of the land, preceded the suppression of religious + houses, and the act of the latter monarch allowing the poor to beg was + passed before any steps were taken to close the convents. That measure was + no doubt injurious to the poor, but the main evil arose from other causes. + The lands of these houses, when no longer applicable to the purpose for + which they were given, should have reverted to the heirs of the donors, or + have been applied to other religious or educational purposes. The bestowal + of them upon favorites, to the detriment alike of the State, the Church, + the Poor, and the Ignorant, was an abuse of great magnitude, the effect of + which is still felt. The reigns of the Tudors are marked with three events + affecting the land—viz.: + </p> + <p> + 1st. Relieving it of the support of the army; + </p> + <p> + 2d. Burdening of it with the support of the poor; + </p> + <p> + 3d. Applying the monastic lands to private uses. + </p> + <p> + The abolition of retainers, while it relieved the land of the nobles from + the principal charge thereon, did not entirely abolish knight's service. + The monarch was entitled to the care of all minors, to aids on the + marriage or knighthood of the eldest son, to primerseizin or a year's rent + upon the death of each tenant of the Crown. These fees were considerable, + and were under the care of the Court of Ward and Liveries. + </p> + <p> + The artisan class had, however, grown in wealth, and they were greatly + strengthened by the removal from France of large numbers of workmen in + consequence of the revocation of the Edict of Nantes. These prosperous + tradespeople became landowners by purchase, and thus tended to replace the + LIBERI HOMINES, or FREEMEN, who had been destroyed under the wars of the + nobles, which effaced the landmarks of English society. The liberated + serfs attained the position of paid farm-laborers; had the policy of + Elizabeth, who enacted that each of their cottages should have an + allotment of four acres of land, been carried out, it would have been most + beneficial to the state. + </p> + <p> + The reign of this family embraced one hundred and eighteen years, during + which the increase of the population was about twenty-five per cent. When + Henry VII. ascended the throne in 1485 it was 4,000,000, and on the death + of Queen Elizabeth in 1603 it had reached 5,000,000, the average increase + being about 8000 per annum. The changes effected in the condition of the + farmers' class left the mass of the people in a far worse state at the + close than at the commencement of their rule. + </p> + <p> + <a name="link2H_4_0008" id="link2H_4_0008"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + VII. THE STUARTS. + </h2> + <p> + The accession of the Stuarts to the throne of England took place under + peculiar circumstances. The nation had just passed through two very + serious struggles—one political, the other religious. The land which + had been in the possession of religious communities, instead of being + retained by the state for educational or religious purposes, had been + given to favorites. A new class of ownership had been created—the + lay impropriators of tithes. The suppression of retainers converted land + into a quasi property. The extension to land of the powers of bequest gave + the possessors greater facilities for disposing thereof. It was relieved + from the principal feudal burden, military service, but remained + essentially feudal as far as tenure was concerned. Men were no longer + furnished to the state as payment of the knight's fee; they were cleared + off the land, to make room for sheep and oxen, England being in that + respect about two hundred years in advance of Ireland, though without the + outlet of emigration. Vagrancy and its attendant evils led to the Poor + Law. + </p> + <p> + James I. and his ministers tried to grapple with the altered + circumstances, and strove to substitute and equitable Crown rent or money + payment for the existing and variable claims which were collected by the + Court of Ward and Livery. The knight's fee then consisted of twelve + plough-lands, a more modern name for "a hide of land." The class burdened + with knight's service, or payments in lieu thereof, comprised 160 temporal + and 26 spiritual lords, 800 barons, 600 knights, and 3000 esquires. The + knight's fee was subject to aids, which were paid to the Crown upon the + marriage of the king's son or daughter. Upon the death of the possessor, + the Crown received primer-seizen a year's rent. If the successor was an + infant, the Crown under the name of Wardship, took the rents of the + estates. If the ward was a female, a fine was levied if she did not accept + the husband chosen by the Crown. Fines on alienation were also levied, and + the estates, though sold, became escheated, and reverted to the Crown upon + the failure of issue. These various fines kept alive the principle that + the lands belonged to the Crown as representative of the nation; but, as + they varied in amount, James I. proposed to compound with the + tenants-in-fee, and to convert them into fixed annual payments. The nobles + refused, and the scheme was abandoned. + </p> + <p> + In the succeeding reign, the attempt to stretch royal power beyond its due + limits led to resistance by force, but it was no longer a mere war of + nobles; their power had been destroyed by Henry VII. The Stuarts had to + fight the people, with a paid army, and the Commons, having the purse of + the nation, opposed force to force. The contest eventuated in a military + protectorship. Many of the principal tenants-in-fee fled the country to + save their lives. Their lands were confiscated and given away; thus the + Crown rights were weakened, and Charles II. was forced to recognize many + of the titles given by Cromwell; he did not dare to face the convulsion + which must follow an expulsion of the novo homo in posession of the + estates of more ancient families; but legislation went further—it + abolished all the remaining feudal charges. The Commons appear to have + assented to this change, from a desire to lessen the private income of the + Sovereign, and thus to make him more dependent upon Parliament, This was + done by the 12th Charles II., cap. 24. It enacts: + </p> + <p> + "That the Court of Ward and Liveries, primer seizin, etc., and all fines + for alienation, tenures by knight's service, and tenures in capite, be + done away with and turned into fee and common socage, and discharged of + homage, escuage, aids, and reliefs. All future tenures created by the king + to be in free and common socage, reserving rents to the Crown and also + fines on alienation. It enables fathers to dispose of their children's + share during their minority, and gives the custody of the personal estate + to the guardians of such child, and imposes in lieu of the revenues raised + in the Court of Ward and Liveries, duties upon beer and ale." + </p> + <p> + The land was relieved of its legitimate charge, and a tax on beer and ale + imposed instead! the landlords were relieved at the expense of the people. + The statute which accomplished this change is described by Blackstone as + </p> + <p> + "A greater acquisition to the civil property of this kingdom than even + Magna Charta itself, since that only pruned the luxuriances that had grown + out of military tenures, and thereby preserved them in vigor; but the + statute of King Charles extirpated the whole, and demolished both root and + branches." + </p> + <p> + The efforts of James II. to rule contrary to the wish of the nation, led + to his expulsion from the throne, and showed that, in case of future + disputes as to the succession, the army, like the Praetorian Guards of + Rome, had the election of the monarch. The Red and White Roses of the + Plantagenets reappeared under the altered names of Whig and Tory; but it + was proved that the decision of a leading soldier like the Duke of + Marlborough would decide the army, and that it would govern the nation; + fortunately the decision was a wise one, and was ratified by Parliament: + thus FORCE governed LAW, and the decision of the ARMY influenced the + SENATE. William III. succeeded, AS AN ELECTED MONARCH, under the Bill of + Rights. This remarkable document contains no provision, securing the + tenants-in-fee in their estates; and I have not met with any treatise + dealing with the legal effects of the eviction of James II. All patents + were covenants between the king and his heirs, and the patentees and their + heirs. The expulsion of the sovereign virtually destroyed the title; and + an elected king, who did not succeed as heir, was not bound by the patents + of his predecessors, nor was William asked, by the Bill of Rights, to + recognize any of the existing titles. This anomalous state of things was + met in degree by the statute of prescriptions, but even this did not + entirely cure the defect in the titles to the principal estates in the + Kingdom. The English tenants in decapitating one landlord and expelling + another, appear to have destroyed their titles, and then endeavored to + renew them by prescriptive right; but I shall not pursue this topic + further, though it may have a very definite bearing upon the question of + landholding. + </p> + <p> + It may not be uninteresting to allude rather briefly to the state of + England at the close of the seventeenth century. Geoffrey King, who wrote + in 1696, gives the first reliable statistics about the state of the + country. He estimated the number of houses at 1,300,000, and the average + at four to each house, making the population 5,318,000. He says there was + but seven acres of land for each person, but that England was six times + better peopled than the known world, and twice better than Europe. He + calculated the total income at L43,500,000, of which the yearly rent of + land was L10,000,000. The income was equal to L7, 18s. 0d. per head, and + the expense L7, 11s. 4d.; the yearly increase, 6s. 8d. per head, or + L1,800,000 per annum. He estimated the annual income of 160 temporal peers + at L2800 per annum, 26 spiritual peers at L1300, of 800 baronets at L800, + and of 600 knights at L650. + </p> + <p> + He estimated the area at 39,000,000 acres (recent surveys make it + 37,319,221). He estimated the arable land at 11,000,000 acres, and pasture + and meadow at 10,000,000, a total of 21,000,000. The area under all kinds + of crops and permanent pasture was, in 1874, 26,686,098 acres; therefore + about five and a half million acres have been reclaimed and added to the + arable land. As the particulars of his estimate may prove interesting, I + append them in a note. + </p> +<pre xml:space="preserve"> + [Footnote—Geoffrey King thus classifies the land of England and + Wales: +</pre> +<pre xml:space="preserve"> + Acres. Value/Acre Rent + + Arable Land, 11,000,000 L0 5 10 L3,200,000 + Pasture and Meadow, 10,000,000 0 9 0 4,500,000 + Woods and Coppices, 3,000,000 0 5 0 750,000 + Forests, Parks, and Covers, 3,000,000 0 3 6 550,000 + Moors, Mountains, and Barren Lands, 10,000,000 0 1 0 500,000 + Houses, Homesteads, Gardens, Orchards,) 1,000,000 (The Land, 450,000 + Churches, and Churchyards, ) (The Buildings, 2,000,000 + Rivers, Lakes, Meres, and Ponds, 500,000 0 2 0 50,000 + Roadways and Waste Lands, 500,000 + ————— ———- ————— + 39,000,000 L0 6 0 L12,000,000 + + He estimates the live stock thus: + Value without + the Skin + Beeves, Stirks, and Calves, 4,500,000 L2 0 0 L9,000,000 + Sheep and Lambs, 11,000,000 0 8 0 4,400,000 + Swine and Pigs, 2,000,000 0 16 0 1,600,000 + Deer, Fawns, Goats and Kids, 247,900 + + 15,247,900 + + Horses, 1,200,000 2 0 0 3,000,000 + Value of Skins, 2,400,000 + —————- + L20,647,900 + + The annual produce he estimated as follows: + + Acres Rent Produce + Grain, 10,000,000 L3,000,000 L8,275,000 + Hemp, Flax, etc., 1,000,000 200,000 2,000,000 + Butter, Cheese, and Milk, ) ( 2,500,000 + Wool, ) ( 2,000,000 + Horses bred, ) ( 250,000 + Flesh Meat, )- 29,000,000 6,800,000 -( 3,500,000 + Tallow and Hides, ) ( 600,000 + Hay Consumed, ) ( 2,300,000 + Timber, ) ( 1,000,000 + ————— —————- —————- + Total 39,000,000 L10,000,000 L22,275,000] +</pre> + <p> + He places the rent of the corn land at about one third of the produce, and + that of pasture land at rather more. The price of meat per lb. was: beef 1 + and 1/8d.; mutton, 2 and 1/4d.; pork, 3d.; venison, 6d.; hares, 7d.; + rabbits, 6d. The weight of flesh-meat consumed was 398,000,000 lbs., it + being 72 lbs. 6 oz. for each person, or 3 and 1/6 oz. daily. I shall have + occasion to contrast these figures with those lately published when I come + to deal with the present; but a great difference has arisen from the + alteration in price, which is owing to the increase in the quantity of the + precious metals. + </p> + <p> + The reign of the last sovereign of this unfortunate race was distinguished + by the first measures to inclose the commons and convert them into private + property, with which I shall deal hereafter. + </p> + <p> + The changes effected in the land laws of England during the reigns of the + Stuarts, a period of 111 years, were very important. The act of Charles + II. which abolished the Court of Ward and Liveries, appeared to be an + abandonment of the rights of the people, as asserted in the person of the + Crown; and this alteration also seemed to give color of right to the claim + which is set up of property in land, but the following law of Edward III. + never was repealed: + </p> + <p> + "That the king is the universal lord and original proprietor of all land + in his kingdom, and that no man doth or can possess any part of it but + what has mediately or immediately been derived as a gift from him to be + held on feodal service." + </p> + <p> + No lawyer will assert for any English subject a higher title than + tenancy-in-fee, which bears the impress of holding and denies the + assertion of ownership. + </p> + <p> + The power of the nobles, the tenants-in-fee, was strengthened by an act + passed in the reign of William and Mary, which altered the relation of + landlord and tenant. Previous thereto, the landlord had the power of + distraint, but he merely held the goods he seized to compel the tenant to + perform personal service. It would be impossible for a tenant to pay his + rent if his stock or implements were sold off the land. As the Tudor + policy of money payments extended, the greed for pelf led to an alteration + in the law, and the act of William and Mary allowed the landlord to sell + the goods he had distrained. The tenant remained in possession of the land + without the means of tilling it, which was opposed to public policy. This + power of distraint was, however, confined to holdings in which there were + leases by which the tenant covenanted to allow the landlord to distrain + his stock and goods in default of payment of rent. The legislation of the + Stuarts was invariably favorable to the possessor of land and adverse to + the rights of the people. The government during the closing reigns was + oligarchical, so much so, that William III., annoyed at the restriction + put upon his kingly power, threatened to resign the crown and retire to + Holland; but the aristocracy were unwilling to relax their claims, and + they secured by legislation the rights they appeared to have lost by the + deposition of the sovereign. + </p> + <p> + The population had increased from 5,000,000 in 1603 to 5,750,000 in 1714, + being an average increase of less than 7000 per annum. + </p> + <p> + <a name="link2H_4_0009" id="link2H_4_0009"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + VIII. THE HOUSE OF HANOVER. + </h2> + <p> + The first sovereign of the House of Hanover ascended the throne not by + right of descent but by election; the legitimate heir was set aside, and a + distant branch of the family was chosen, and the succession fixed by act + of Parliament; but it is held by jurists that every Parliament is + sovereign and has the power of repealing any act of any former Parliament. + The beneficial rule of some of the latter monarchs of this family has + endeared them to the people, but the doctrine of reigning by divine right, + the favorite idea of the Stuarts, is nullified, when the monarch ascends + the throne by statute law and not by succession or descent. + </p> + <p> + The age of chivalry passed away when the Puritans defeated the Cavaliers. + The establishment of standing armies and the creation of a national debt, + went to show that money, not knighthood or knight's service, gave force to + law. The possession of wealth and of rent gave back to their possessors + even larger powers than those wrested from them by the first Tudor king. + The maxim that "what was attached to the freehold belonged to the + freehold," gave the landlords even greater powers than those held by the + sword, and of which they were despoiled. Though nominally forbidden to + take part in the election of the representatives of the Commons, yet they + virtually had the power, the creation of freehold, the substance and + material of electoral right; and consequently both Houses of Parliament + were essentially landlord, and the laws, for the century which succeeded + the ascension of George I., are marked with the assertion of landlord + right which is tenant wrong. + </p> + <p> + Among the exhibitions of this influence is an act passed in the reign of + George II., which extended the power of distraint for rent, and the right + to sell the goods seized—to all tenancies. Previous legislation + confined this privilege solely to cases in which there were leases, + wherein the tenant, by written contract, gave the landlord power to seize + in case of non-payment of rent, but there was no legal authority to sell + until it was given by an act passed in the reign of William III. The act + of George II. presumed that there was such a contract in all cases of + parole letting or tenancy-at-will, and extended the landlord's powers to + such tenancies. It is an anomaly to find that in the freest country in the + world such an arbitrary power is confided to individuals, or that the + landlord-creditor has the precedence over all other creditors, and can, by + his own act, and without either trial or evidence, issue a warrant that + has all the force of the solemn judgment of a court of law; and it + certainly appears unjust to seize a crop, the seed for which is due to one + man, and the manure to another, and apply it to pay the rent. But + landlordism, intrusted with legislative power, took effectual means to + preserve its own prerogative, and the form of law was used by parliaments, + in which landlord influence was paramount, to pass enactments which were + enforced by the whole power of the state, and sustained individual or + class rights. + </p> + <p> + The effect of this measure was most unfortunate; it encouraged the letting + of lands to tenants-at-will or tenants from year to year, who could not, + under existing laws, obtain the franchise or power to vote—they were + not FREEMEN, they were little better than serfs. They were tillers of the + soil, rent-payers who could be removed at the will of another. They were + not even freeholders, and had no political power—no voice in the + affairs of the nation. The landlords in Parliament gave themselves, + individually by law, all the powers which a tenant gave them by contract, + while they had no corresponding liability, and, therefore, it was their + interest to refrain from giving leases, and to make their tenantry as + dependent on them as if they were mere serfs. This law was especially + unfortunate, and had a positive and very great effect upon the condition + of the farming class and upon the nation, and people came to think that + landlords could do as they liked with their land, and that the tenants + must be creeping, humble, and servile. + </p> + <p> + An effort to remedy this evil was made in 1832, when the occupiers, if + rented or rated at the small amount named, became voters. This gave the + power to the holding, not to the man, and the landlord could by simple + eviction deprive the man of his vote; hence the tenants-at-will were + driven to the hustings like sheep—they could not, and dare not, + refuse to vote as the landlord ordered. + </p> + <p> + The lords of the manor, with a landlord Parliament, asserted their claims + to the commonages, and these lands belonging to the people, were gradually + inclosed, and became the possession of individuals. The inclosing of + commonages commenced in the reign of Queen Anne, and was continued in the + reigns of all the sovereigns of the House of Hanover. The first inclosure + act was passed in 1709; in the following thirty years the average number + of inclosure bills was about three each year; in the following fifty years + there were nearly forty each year; and in the forty years of the + nineteenth century it was nearly fifty per annum. + </p> + <p> + The inclosures in each reign were as follows: + </p> +<pre xml:space="preserve"> + Acts. Acres. + Queen Anne, 2 1,439 + George I., 16 17,660 + George II., 226 318,784 + George III., 3446 3,500,000 + George IV., 192 250,000 + William IV., 72 120,000 + —— ————- + Total, 3954 4,207,883 +</pre> + <p> + These lands belonged to the people, and might have been applied to relieve + the poor. Had they been allotted in small farms, they might have been made + the means of support of from 500,000 to 1,000,000 families, and they would + have afforded employment and sustenance to all the poor, and thus rendered + compulsory taxation under the poor-law system unnecessary; but the + landlords seized on them and made the tenantry pay the poor-rate. + </p> + <p> + The British Poor Law is a slur upon its boasted civilization. The unequal + distribution of land and of wealth leads to great riches and great + poverty. Intense light produces deep shade. Nowhere else but in wealthy + England do God's creatures die of starvation, wanting food, while others + are rich beyond comparison. The soil which affords sustenance for the + people is rightly charged with the cost of feeding those who lack the + necessaries of life, but the same object would be better achieved in a + different way. Poor-rates are now a charge upon a man's entire estate, and + it would be much better for society if land to an amount equivalent to the + charge were taken from the estate and assigned to the poor. If a man is + charged with L100 a year poor-rate, it would make no real difference to + him, while it would make a vast difference to the poor to take land to + that value, put the poor to work tilling it, allowing them to enjoy the + produce. Any expense should be paid direct by the landlord, which would + leave the charge upon the land, and exempt the improvements of the tenant, + which represent his labor, free. + </p> + <p> + The evil has intensified in magnitude, and a permanent army of paupers + numbering at the minimum 829,281 persons, but increasing at some periods + to upward of 1,000,000, has to be provided for; the cost, about L8,000,000 + a year, is paid, not by landlords but by tenants, in addition to the + various charities founded by benevolent persons. There are two classes + relieved under this system, and which ought to be differently dealt with—the + sick and the young. Hospitals for the former and schools for the latter + ought to take the place of the workhouse. It is difficult to fancy a worse + place for educating the young than the workhouse, and it would tend to + lessen the evil were the children of the poor trained and educated in + separate establishments from those for the reception of paupers. Pauperism + is the concomitant of large holdings of land and insecurity of tenure. The + necessity of such a provision arose, as I have previously shown, from the + wholesale eviction of large numbers of the occupiers of land; and, as the + means of supplying the need came from the LAND, the expense should, like + tithes, have fallen exclusively upon land. The poor-rates are, however, + also levied upon houses and buildings, which represent labor. The owner of + land is the people, as represented by the Crown, and the charges thereon + next in succession to the claims of the state are the church and the poor. + </p> + <p> + The Continental wars at the close of the eighteenth and the commencement + of the nineteenth century had some effect upon the system of tillage; they + materially enhanced the price of agricultural produce—rents were + raised, and the national debt was contracted, which remains a burden on + the nation. + </p> + <p> + The most important change, however, arose from scientific and mechanical + discoveries—the application of heat to the production of motive + power. As long as water, which is a non-exhaustive source of motion, was + used, the people were scattered over the land; or if segregation took + place, it was in the neighborhood of running streams. The application of + steam to the propulsion of machinery, and the discovery of engines capable + of competing with the human hand, led to the substitution of machine-made + fabrics for clothing, in place of homespun articles of domestic + manufacture. This led to the employment of farm-laborers in procuring + coals, to the removal of many from the rural into the urban districts, to + the destruction of the principal employment of the family during the + winter evenings, and consequently effected a great revolution in the + social system. Many small freeholds were sold, the owners thinking they + could more rapidly acquire wealth by using the money representing their + occupancy, in trade. Thus the large estates became larger, and the smaller + ones were absorbed, while the appearance of greater wealth from exchanging + subterranean substances for money, or its representative, gave rise to + ostentatious display. The rural population gradually diminished, while the + civic population increased. The effect upon the system of landholding was + triplicate. First, there was a diminution in the amount of labor + applicable to the cultivation of land; second, there was a decrease in the + amount of manure applied to the production of food; and lastly, there was + an increase in the demand for land as a source of investment, by those + who, having made money in trade, sought that social position which follows + the possession of broad acres. Thus the descendants of the feudal + aristocracy were pushed aside by the modern plutocracy. + </p> + <p> + This state of things had a double effect. Food is the result of two + essential ingredients—land and labor. The diminution in the amount + of labor applied to the soil, consequent upon the removal of the laborers + from the land, lessened the quantity of food; while the consumption of + that food in cities and towns, and the waste of the fertile ingredients + which should be restored to the soil, tended to exhaust the land, and led + to vast importations of foreign and the manufacture of mineral manures. I + shall not detain you by a discussion of this aspect of the question, which + is of very great moment, consequent upon the removal of large numbers of + people from rural to urban districts; but I may be excused in saying that + agricultural chemistry shows that the soil—"perpetual man"—contains + the ingredients needful to support human life, and feeding those animals + meant for man's use. These ingredients are seized upon by the roots of + plants and converted into aliment. If they are consumed where grown, and + the refuse restored to the soil, its fertility is preserved; nay, more, + the effect of tillage is to increase its productive power. It is + impossible to exhaust land, no matter how heavy the crops that are grown, + if the produce is, after consumption, restored to the soil. I have shown + you how, in the reign of Queen Elizabeth, a man was not allowed to sell + meat off his land unless he brought to, and consumed on it, the same + weight of other meat. This was true agricultural and chemical economy. But + when the people were removed from country to town, when the produce grown + in the former was consumed in the latter, and the refuse which contained + the elements of fertility was not restored to the soil, but swept away by + the river, a process of exhaustion took place, which has been met in + degree by the use of imported and artificial manures. The sewage question + is taken up mainly with reference to the health of towns, but it deserves + consideration in another aspect—its influence upon the production of + food in the nation. + </p> + <p> + An exhaustive process upon the fertility of the globe has been set on + foot. The accumulations of vegetable mould in the primeval forests have + been converted into grain, and sent to England, leaving permanent + barrenness in what should be prolific plains; and the deposits of the + Chincha and Ichaboe Islands have been imported in myriads of tons, to + replace in our own land the resources of which it is bereft by the civic + consumption of rural produce. + </p> + <p> + These conjoined operations were accelerated by the alteration in the + British corn laws in 1846, which placed the English farmer, who tried to + preserve his land in a state of fertility, in competition with foreign + grain—growers, who, having access to boundless fields of virgin + soil, grow grain year after year until, having exhausted the fertile + element, they leave it in a barren condition, and resort to other parts. A + competition under such circumstances resembles that of two men of equal + income, one of who appears wealthy by spending a portion of his capital, + the other parsimonious by living within his means. Of course, the latter + has to debar himself of many enjoyments. The British farmer has lessened + the produce of grain, and consequently of meat; and the nation has become + dependent upon foreigners for meat, cheese, and butter, as well as for + bread. + </p> + <p> + This is hardly the place to discuss a question of agriculture, but + scientific farmers know that there is a rotation of crops, [Footnote: The + agricultural returns of the United Kingdom show that 50 and 1/2 per cent + of the arable land was under pasture, 24 per cent under grain, 12 per cent + under green crops and bare fallow, and 13 per cent under clover. The + rotation would, therefore, be somewhat in this fashion: Nearly one fourth + of the land in tillage is under a manured crop or fallow, one fourth under + wheat, one fourth under clover, and one fourth under barley, oats, etc., + the succession being, first year, the manured crop; next year, wheat; + third year, clover; fourth, barley or oats; and so on.] and that as one is + diminished the others lessen. The quantity under tillage is a multiple of + the area under grain. A diminution in corn is followed by a decrease of + the extent under turnips and under clover; the former directly affects + man, the latter the meat-affording animals. A decrease in the breadth + under tillage means an addition to the pasture land, which in this climate + only produces meat during the warm portions of the year. I must, however, + not dwell upon this topic, but whatever leads to a diminution in the labor + applied to the land lessens the production of food, and DEAR MEAT may only + be the supplement to CHEAP CORN. + </p> + <p> + I shall probably be met with the hackneyed cry, The question is entirely + one of price. Each farmer and each landlord will ask himself, Does it pay + to grow grain? and in reply to any such inquiry, I would refer to the + annual returns. I find that in the five years, 1842 to 1846, wheat ranged + from 50s. 2d. to 57s. 9d.; the average for the entire period being 54s. + 10d. per quarter. In the five years from 1870 to 1874 it ranged from 46s. + 10d. to 58s. 8d., the average for the five years being 54s. 7d. per + quarter. The reduction in price has only been 3d. per quarter, or less + than one half per cent. + </p> + <p> + I venture to think that there are higher considerations than mere profit + to individuals, and that, as the lands belong to the whole state as + represented by the Crown, and as they are held in trust TO PRODUCE FOOD + FOR THE PEOPLE, that trust should be enforced. + </p> + <p> + The average consumption of grain by each person is about a quarter (eight + bushels) per annum. In 1841 the population of the United Kingdom was + 27,036,450. The average import of foreign grain was about 3,000,000 + quarters, therefore TWENTY-FOUR MILLIONS were fed on the domestic produce. + In 1871 the population was 31,513,412, and the average importation of + grain 20,000,000 quarters; therefore only ELEVEN AND A HALF MILLIONS were + supported by home produce. Here we are met with the startling fact that + our own soil is not now supplying grain to even one half the number of + people to whom it gave bread in 1841. This is a serious aspect of the + question, and one that should lead to examination, whether the development + of the system of landholding, the absorptions of small farms and the + creation of large ones, is really beneficial to the state, or tends to + increase the supply of food. The area under grain in England in 1874 was + 8,021,077. In 1696 it was 10,000,000 acres, the diminution having been + 2,000,000 acres. The average yield would probably be FOUR QUARTERS PER + ACRE, and therefore the decrease amounted to the enormous quantity of + EIGHT MILLION QUARTERS, worth L25,000,000, which had to be imported from + other countries, to fill up the void, and feed 8,000,000 of the + population; and if a war took place, England may, like Rome, be starved + into peace. + </p> + <p> + An idea prevails that a diminution in the extent under grain implies an + increase in the production of meat. The best answer to that fallacy lies + in the great increase in the price of meat. If the supply had increased + the price would fall, but the converse has taken place. A comparison of + the figures given by Geoffrey King, in the reign of William III., with + those supplied by the Board of Trade in the reign of Queen Victoria, + illustrates this phase of the landholding question, and shows whether the + "enlightened policy" of the nineteenth century tends to encourage the + fulfilment of the trust which applies to land—THE PRODUCTION OF + FOOD. + </p> + <p> + The land of England and Wales in 1696 and 1874 was classified as follows: + </p> +<pre xml:space="preserve"> + 1696. 1874. + Acres. Acres. + Under grain, 10,000,000 8,021,077 + Pastures and meadows, 10,000,000 12,071,791 + Flax, hemp, and madder, 1,000,000 ————- + Green crops, ————- 2,895,138 + Bare fallow, ————- 639,519 + Clover ————- 2,983,733 + Orchards, 1,000,000 148,526 + Woods, coppices, etc, 3,000,000 1,552,598 + Forests, parks, and commons, 3,000,000| + Moors, mountains, and bare land, 10,000,000|- 9,006,839 + Waste, water, and road, 1,000,000| + —————- —————- + 39,000,000 37,319,231 +</pre> + <p> + The estimate of 1696 may be corrected by lessing the quantity of waste + land, and thus bringing the total to correspond with the extent + ascertained by actual survey, but it shows a decrease in the extent under + grain of nearly two million acres, and an increase in the area applicable + to cattle of nearly 8,000,000 acres; yet there is a decrease in the number + of cattle, though an increase in sheep. The returns are as follows: + </p> +<pre xml:space="preserve"> + 1696. 1800. 1874. + Cattle 4,500,000 2,852.428 4,305,440 + Sheep 11,000,000 26,148,000 19,859,758 + Pigs 2,000,000 (not given) 2,058,791 +</pre> + <p> + The former shows that in 1696 there were TEN MILLION acres under grain, + the latter only EIGHT MILLION acres. Two million acres were added for + cattle feeding. The former shows that the pasture land was TEN MILLION + ACRES, and that green crops and clover were unknown. The latter that there + were TWELVE MILLION ACRES under pasture, and, in addition, that there were + nearly THREE MILLION ACRES of green crop and THREE MILLION ACRES of + clover. The addition to the cattle-feeding land was eight million acres; + yet the number of cattle in 1696 was 4,500,000, and in 1874, 4,305,400. Of + sheep, in 1696, there were 11,000,000, and in 1874, 19,889,758. The + population had increased fourfold, and it is no marvel that meat is dear. + It is the interest of agriculturists to KEEP DOWN THE QUANTITY AND KEEP UP + THE PRICE. The diminution in the area under corn was not met by a + corresponding increase in live stock—in other words, the decrease of + land under grain is not, PER SE, followed by an increase of meat. If the + area under grain were increased, it would be preceded by an increase in + the growth of turnips, and followed by a greater growth of clover; and + these cattle-feeding products would materially add to the meat supply. + </p> + <p> + A most important change in the system of landholding was effected by the + spread of RAILWAYS. It was brought about by the influence of the trading + as opposed to the landlord class. In their inception they did not appear + likely to effect any great alteration in the land laws. The shareholders + had no compulsory power of purchase, hence enormous sums were paid for the + land required; but as the system extended, Parliament asserted the + ownership of the nation, over land in the possession of the individual. + Acting on the idea that no man was more than a tenant, the state took the + land from the occupier, as well as the tenant-in-fee, and gave it, not at + their own price, but an assessed value, to the partners in a railway who + traded for their mutual benefit, yet as they offered to convey travellers + and goods at a quicker rate than on the ordinary roads, the state enabled + them to acquire land by compulsion. A general act, the Land Clauses Act, + was passed in 1846, which gives privileges with regard to the acquisition + of land to the promoters of such works as railways, docks, canals, etc. + Numbers of acts are passed every session which assert the right of the + state over the land, and transfer it from one man, or set of men, to + another. It seems to me that the principle is clear, and rests upon the + assertion of the state's ownership of the land; but it has often struck me + to ask, Why is this application of state rights limited to land required + for these objects? why not apply to the land at each side of the railway, + the principle which governs that under the railway itself? I consider the + production of food the primary trust upon the land, that rapid transit + over it is a secondary object; and as all experience shows that the + division of land into small estates leads to a more perfect system of + tillage, I think it would be of vast importance to the entire nation if + all tenants who were, say, five years in possession were made "promoters" + under the Land Clauses Act, and thus be enabled to purchase the fee of + their holdings in the same manner as a body of railway proprietors. It + would be most useful to the state to increase the number of tenants-in-fee—to + re-create the ancient FREEMEN, the LIBERI HOMINES—and I think it can + be done without requiring the aid either of a new principle or new + machinery, by simply placing the farmer-in-possession on the same footing + as the railway shareholder. I give at foot the draft of a bill I prepared + in 1866 for this object. + </p> +<pre xml:space="preserve"> + [Footnote: A BILL TO ENCOURAGE THE OUTLAY OF MONEY UPON LAND + FOB AGRICULTURAL PURPOSES. + + Whereas it is expedient to encourage the occupiers of land + to expend money thereon, in building, drainage, and other + similar improvements; and whereas the existing laws do not + give the tenants or occupiers any sufficient security for + such outlay: Be it enacted by the Queen's Most Excellent + Majesty, by and with the advice and consent of the Lords + Spiritual and Temporal, and Commons in Parliament assembled, + and by the authority of the same: + + 1. That all outlay upon land for the purpose of rendering it + more productive, and all outlay upon buildings for the + accommodation of those engaged in tilling or working the + same, or for domestic animals of any sort, be, and the same + is hereby deemed to be, an outlay of a public nature. + + 2. That the clauses of "The Land Clauses Consolidation Act + 1845," "with respect to the purchase of lands by agreement," + and "with respect to the purchase and taking of lands + otherwise than by agreement," and "with respect to the + purchase money or compensation coming to parties having + limited interests, or prevented from treating or not making + title," shall be, and they are hereby incorporated with this + act. + + 3. That every tenant or occupier who has for the past five + years been in possession of any land, tenements, or + hereditaments, shall be considered "a promoter of the + undertaking within the meaning of the said recited act, and + shall be entitled to purchase the lands which he has so + occupied, 'either by agreement' 'or otherwise than by + agreement,' as provided in the said recited act." + + Then follow some details which it is unnecessary to recite here.] +</pre> + <p> + The 55th William I. secured to freemen the inheritance of their lands, and + they were not able to sell them until the act QUIA EMPTORES of Edward I. + was passed. The tendency of persons to spend the representative value of + their lands and sell them was checked by the Mosaic law, which did not + allow any man to despoil his children of their inheritance. The possessor + could only mortgage them until the year of jubilee—the fiftieth + year. In Switzerland and Belgium, where the nobles did not entirely get + rid of the FREEMEN, the lands continued to be held in small estates. In + Switzerland there are seventy-four proprietors for every hundred families, + and in Belgium the average size of the estate is three and a half hectares—about + eight acres. These small ownerships are not detrimental to the state. On + the contrary, they tend to its security and well-being. I have treated on + this subject in my work, "The Food Supplies of Western Europe." These + small estates existed in England at the Norman Conquest, and their + perpetual continuance was the object of the law of William I., to which I + have referred. Their disappearance was due to the greed of the nobles + during the reign of the Plantagenets, and they were not replaced by the + Tudors, who neglected to restore the men-at-arms to the position they + occupied under the laws of Edward the Confessor and William I. + </p> + <p> + The establishment of two estates in land; one the ownership, the other the + use, may be traced to the payment of rent, to the Roman commonwealth, for + the AGER PUBLICUS. Under the feudal system the rent was of two classes—personal + service or money; the latter was considered base tenure. The legislation + of the Tudors abolished the payment of rent by personal service, and made + all rent payable in money or in kind. The land had been burdened with the + sole support of the army. It was then freed from this charge, and a tax + was levied upon the community. Some writers have sought to define RENT as + the difference between fertile lands and those that are so unproductive as + barely to pay the cost of tillage. This far-fetched idea is contradicted + by the circumstance that for centuries rent was paid by labor—the + personal service of the vassal—and it is now part of the annual + produce of the soil inasmuch as land will be unproductive without seed and + labor, or being pastured by tame animals, the representative of labor in + taming and tending them. Rent is usually the labor or the fruits of the + labor of the occupant. In some cases it is income derived from the labors + of others. A broad distinction exists between the rent of land, which is a + portion of the fruits or its equivalent in money, and that of improvements + and houses, which is an exchange of the labor of the occupant given as + payment for that employed in effecting improvements or erecting houses. + The latter described as messuages were valued in 1794 at SIX MILLIONS per + annum; in 1814 they were nearly FIFETEEN MILLIONS; now they are valued at + EIGHTY MILLIONS. + </p> +<pre xml:space="preserve"> + [Footnote—A Parliamentary return gives the following information + as to the value of lands and messuages in 1814 and 1874: + + 1814-15. 1873-74. + Lands, L34,330,463 L49,906,866 + Messuages, 14,895,130 80,726,502 + + The increase in the value of land is hardly equal to the + reduction in the value of gold, while the increase in + messuages shows the enormous expenditure of labor.] +</pre> + <p> + The increase represents a sum considerably more than double the national + debt of Great Britain, and under the system of leases the improvements + will pass from the industrial to the landlord class. + </p> + <p> + It seems to me to be a mistake in legislation to encourage a system by + which these two funds merge into one, and that hands the income arising + from the expenditure of the working classes over to the tenants-in-fee + without an equivalent. This proceeds from a straining of the maxim that + "what is attached to the freehold belongs to the freehold," and was made + law when both Houses of Parliament were essentially landlord. That maxim + is only partially true: corn is as much attached to the freehold as a + tree; yet one is cut without hindrance and the other is prevented. + Potatoes, turnips, and such tubers, are only obtained by disturbing the + freehold. This maxim was at one time so strained that it applied to + fixtures, but recent legislation and modern discussions have limited the + rights of the landlord class and been favorable to the occupier, and I + look forward to such alterations in our laws as will secure to the man who + expends his labor or earnings in improvements, an estate IN PERPETUO + therein, as I think no length of user of that which is a man's own—his + labor or earnings—should hand over his representative improvements + to any other person. I agree with those writers who maintain that it is + prejudicial to the state that the rent fund should be enjoyed by a + comparatively small number of persons, and think it would be advantageous + to distribute it, by increasing the number of tenants-in-fee. Natural laws + forbid middlemen, who do nothing to make the land productive, and yet + subsist upon the labor of the farmer, and receive as rent part of the + produce of his toil. The land belongs to the state, and should only be + subject to taxes, either by personal service, such as serving in the + militia or yeomanry, or by money payments to the state. + </p> + <p> + Land does not represent CAPITAL, but the improvements upon it do. A man + does not purchase land. He buys the right of possession. In any transfer + of land there is no locking up of capital, because one man receives + exactly the amount the other expends. The individual may lock up his + funds, but the nation does not. Capital is not money. I quote a definition + from a previous work of mine, "The Case of Ireland," p. 176: + </p> + <p> + "Capital stock properly signifies the means of subsistence for man, and + for the animals subservient to his use while engaged in the process of + production. The jurisconsults of former times expressed the idea by the + words RES FUNGIBILES, by which they meant consumable commodities, or those + things which are consumed in their use for the supply of man's animal + wants, as contradistinguished from unconsumable commodities, which latter + writers, by an extension of the term, in a figurative sense, have called + FIXED capital." + </p> + <p> + All the money in the Bank of England will not make a single four-pound + loaf. Capital, as represented by consumable commodities, is the product of + labor applied to land, or the natural fruits of the land itself. The land + does not become either more or less productive by reason of the transfer + from one person to another; it is the withdrawal of labor that affects its + productiveness. + </p> + <p> + WAGES are a portion of the value of the products of a joint combination of + employer and employed. The former advances from time to time as wages to + the latter, the estimated portion of the increase arising from their + combined operations to which he may be entitled. This may be either in + food or in money. The food of the world for one year is the yield at + harvest; it is the CAPITAL STOCK upon which mankind exist while engaged in + the operations for producing food, clothing, and other requisites for the + use of mankind, until nature again replenishes this store. Money cannot + produce food; it is useful in measuring the distribution of that which + already exists. + </p> + <p> + The grants of the Crown were a fee or reward for service rendered; the + donee became tenant-in-fee; being a reward, it was restricted to a man and + his heirs-male or his heirs-general; in default of heirs-male or + heirs-general, the land reverted to the Crown, which was the donor. A sale + to third parties does not affect this phase of the question, inasmuch as + it is a principle of British law that no man can convey to another a + greater estate in land than that which he possesses himself; and if the + seller only held the land as tenant-in-fee for HIS OWN LIFE and that of + HIS heirs, he could not give a purchaser that which belonged to the Crown, + the REVERSION on default of heirs (see Statute DE DONIS, 13 Edward I., + ANTE, p. 21). This right of the sovereign, or rather of the people, has + not been asserted to the full extent. Many noble families have become + extinct, yet the lands have not been claimed, as they should have been, + for the nation. + </p> + <p> + I should not complete my review of the subject without referring to what + are called the LAWS OF PRIMOGENITURE. I fail to discover any such law. On + the contrary, I find that the descent of most of the land of England is + under the law of contract—by deed or bequest—and that it is + only in case of intestacy that the courts intervene to give it to the next + heir. This arises more from the construction the judges put upon the + wishes of the deceased, than upon positive enactment. When a man who has + the right of bequeathing his estate among his descendants does not + exercise that power, it is considered that he wishes the estate to go + undivided to the next heir. In America the converse takes place: a man can + leave all his land to one; and, if he fails to do so, it is divided. The + laws relating to contracts or settlements allow land to be settled by deed + upon the children of a living person, but it is more frequently upon the + grandchildren. They acquire the power of sale, which is by the contract + denied to their parents. A man gives to his grandchild that which he + denies to his son. This cumbrous process works disadvantageously, and it + might very properly be altered by restricting the power of settlement or + bequest to living persons, and not allowing it to extend to those who are + unborn. + </p> + <p> + It is not a little curious to note how the ideas of mankind, after having + been diverted for centuries, return to their original channels. The system + of landholding in the most ancient races was COMMUNAL. That word, and its + derivative, COMMUNISM, has latterly had a bad odor. Yet all the most + important public works are communal. All joint-stock companies, whether + for banking, trading, or extensive works, are communes. They hold property + in common, and merge individual in general rights. The possession of land + by communes or companies is gradually extending, and it is by no means + improbable that the ideas which governed very remote times may, like the + communal joint-stock system, be applied more extensively to landholding. + </p> + <p> + It may not be unwise to review the grounds that we have been going over, + and to glance at the salient points. The ABORIGINAL inhabitants of this + island enjoyed the same rights as those in other countries, of possessing + themselves of land unowned and unoccupied. The ROMANS conquered, and + claimed all the rights the natives possessed, and levied a tribute for the + use of the lands. Upon the retirement of the Romans, after an occupancy of + about six hundred years, the lands reverted to the aborigines, but they, + being unable to defend themselves, invited the SAXONS, the JUTES, and the + ANGLES, who reduced them to serfdom, and seized upon the land; they acted + as if it belonged to the body of the conquerors, it was allotted to + individuals by the FOLC-GEMOT or assembly of the people, and a race of + LIBERI HOMINES or FREEMEN arose, who paid no rent, but performed service + to the state; during their sway of about six hundred years the + institutions changed, and the monarch, as representing the people, claimed + the right of granting the possession of land seized for treason by BOC or + charter. The NORMAN invasion found a large body of the Saxon landholders + in armed opposition to William, and when they were defeated, he seized + upon their land and gave it to his followers, and then arose the term + TERRA REGIS, "the land of the king," instead of the term FOLC-LAND, "the + land of the people;" but a large portion of the realm remained in the + hands of the LIBERI HOMINES or FREEMEN. The Norman barons gave possession + of part of their lands to their followers, hence arose the vassals who + paid rent to their lord by personal service, while the FREEMEN held by + service to the Crown. In the wars of the PLANTAGENETS the FREEMEN seem to + have disappeared, and vassalage was substituted, the principal vassals + being freeholders. The descendants of the aborigines regained their + freedom. The possession of land was only given for life, and it was + preceded by homage to the Crown, or fealty to the lord, investiture + following the ceremony. The TUDOR sovereigns abolished livery and + retainers, but did not secure the rights of the men-at-arms or replace + them in their position of FREEMEN. The chief lords converted the payment + of rent by service into payment in money; this led to wholesale evictions, + and necessitated the establishment of the Poor Laws, The STUARTS + surrendered the remaining charges upon land: but on the death of one + sovereign, and the expulsion of another, the validity of patents from the + Crown became doubtful. The PRESENT system of landholding is the outcome of + the Tudor ideas. But the Crown has never abandoned the claim asserted in + the statute of Edward I., that all land belongs to the sovereign as + representing the people, and that individuals HOLD but do not OWN it; and + upon this sound and legal principle the state takes land from one and + gives it to another, compensating for the loss arising from being + dispossessed. + </p> + <p> + I have now concluded my brief sketch of the facts which seemed to me most + important in tracing the history of LANDHOLDING IN ENGLAND, and laid + before you not only the most vital changes, but also the principles which + underlay them; and I shall have failed in conveying the ideas of my own + mind if I have not shown you that at least from the Scandinavian or + ANGLO-SAXON invasion, the ownership of land rested either in the people, + or the Crown as representing the people: that individual proprietorship of + land is not only unknown, but repugnant to the principles of the British + Constitution; that the largest estate a subject can have is + tenancy-in-fee, and that it is a holding and not an owning of the soil; + and I cannot conceal from you the conviction which has impressed my mind, + after much study and some personal examination of the state of proprietary + occupants on the Continent, that the best interests of the nation, both + socially, morally, and materially, will be promoted by a very large + increase in the number of tenants-in-fee; which can be attained by the + extension of principles of legistration now in active operation. All that + is necessary is to extend the provisions of the Land Clauses Act, which + apply to railways and such objects, to tenants in possession; to make them + "promoters" under that act; to treat their outlay for the improvement of + the soil and the greater PRODUCTION OF FOOD as a public outlay; and thus + to restore to England a class which corresponds with the Peasent + Proprietors of the Continent—the FREEMAN or LIBERI HOMINES of + ANGLO-SAXON times, whose rights were solemnly guaranteed by the 55th + William I., and whose existence would be the glory of the country and the + safeguard of its institution. + </p> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> +<pre xml:space="preserve"> + + + + + +End of the Project Gutenberg EBook of Landholding In England, by Joseph Fisher + +*** END OF THIS PROJECT GUTENBERG EBOOK LANDHOLDING IN ENGLAND *** + +***** This file should be named 3799-h.htm or 3799-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/7/9/3799/ + +Produced by Charles Franks, Robert Rowe, David Widger, +and the Online Distributed Proofreading Team + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Landholding In England + +Author: Joseph Fisher + +Release Date: February, 2003 [Etext #3799] +Posting Date: January 8, 2010 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK LANDHOLDING IN ENGLAND *** + + + + +Produced by Charles Franks, Robert Rowe and the Online +Distributed Proofreading Team + + + + + + +THE HISTORY OF LANDHOLDING IN ENGLAND. + + +By Joseph Fisher, F.R.H.S. + + + + "Much food is in the tillage of the poor, but there is that + is destroyed for want of Judgment."--PROV. 13: 23. + + "Of all arts, tillage or agriculture is doubtless the most + useful and necessary, as being the source whence the nation + derives its subsistence. The cultivation of the soil causes + it to produce an infinite increase. It forms the surest + resource and the most solid fund of riches and commerce for + a nation that enjoys a happy climate.... The cultivation of + the soil deserves the attention of the Government, not only + on account of the invaluable advantages that flow from it, + but from its being an obligation imposed by nature on + mankind."--VATTEL. + + + + +INTRODUCTION. + + +This work is an expansion of a paper read at the meeting of the Royal +Historical Society in May, 1875, and will be published in the volume of +the Transactions of that body. But as it is an expensive work, and only +accessible to the Fellows of that Society, and as the subject is one +which is now engaging a good deal of public consideration, I have +thought it desirable to place it within the reach of those who may not +have access to the larger and more expensive work. + +I am aware that much might be added to the information it contains, and +I possess materials which would have more than doubled its size, but +I have endeavored to seize upon the salient points, and to express my +views as concisely as possible. + +I have also preferred giving the exact words of important Acts of +Parliament to any description of their objects. + +If this little essay adds any information upon a subject of much public +interest, and contributes to the just settlement of a very important +question, I shall consider my labor has not been in vain. + +JOSEPH FISHER. + +WATERFORD, November 3, 1875. + + + +I do not propose to enter upon the system of landholding in Scotland or +Ireland, which appears to me to bear the stamp of the Celtic origin +of the people, and which was preserved in Ireland long after it had +disappeared in other European countries formerly inhabited by the Celts. +That ancient race may be regarded as the original settlers of a large +portion of the European continent, and its land system possesses a +remarkable affinity to that of the Slavonic, the Hindoo, and even the +New Zealand races. It was originally Patriarchal, and then Tribal, and +was communistic in its character. + +I do not pretend to great originality in my views. My efforts have been +to collect the scattered rays of light, and to bring them to bear upon +one interesting topic. The present is the child of the past. The ideas +of bygone races affect the practices of living people. We form but parts +of a whole; we are influenced by those who preceded us, and we shall +influence those who come after us. Men cannot disassociate themselves +either from the past or the future. + +In looking at this question there is, I think, a vast difference which +has not been sufficiently recognized. It is the broad distinction +between the system arising out of the original occupation of land, and +that proceeding out of the necessities of conquest; perhaps I should add +a third--the complex system proceeding from an amalgamation, or from the +existence of both systems in the same nation. Some countries have been +so repeatedly swept over by the tide of conquest that but little of +the aboriginal ideas or systems have survived the flood. Others have +submitted to a change of governors and preserved their customary laws; +while in some there has been such a fusion of the two systems that +we cannot decide which of the ingredients was the older, except by a +process of analysis and a comparison of the several products of the +alembic with the recognized institutions of the class of original or of +invading peoples. + +Efforts have been made, and not with very great success, to define +the principle which governed the more ancient races with regard to the +possession of land. While unoccupied or unappropriated, it was common +to every settler. It existed for the use of the whole human race. The +process by which that which was common to all became the possession of +the individual has not been clearly stated. The earlier settlers were +either individuals, families, tribes, or nations. In some cases they +were nomadic, and used the natural products without taking possession +of the land; in others they occupied districts differently defined. The +individual was the unit of the family, the patriarch of the tribe. The +commune was formed to afford mutual protection. Each sept or tribe in +the early enjoyment of the products of the district it selected was +governed by its own customary laws. The cohesion of these tribes +into states was a slow process; the adoption of a general system of +government still slower. The disintegration of the tribal system, and +dissolution of the commune, was not evolved out of the original elements +of the system itself, but was the effect of conquest; and, as far as I +can discover, the appropriation to individuals of land which was common +to all, was mainly brought about by conquest, and was guided by impulse +rather than regulated by principle. + +Mr. Locke thinks that an individual became sole owner of a part of the +common heritage by mixing his labor with the land, in fencing it, making +wells, or building; and he illustrates his position by the appropriation +of wild animals, which are common to all sportsmen, but become the +property of him who captures or kills them. This acute thinker seems +to me to have fallen into a mistake by confounding land with labor. The +improvements were the property of the man who made them, but it by no +means follows that the expenditure of labor on land gave any greater +right than to the labor itself or its representative. + +It may not be out of place here to allude to the use of the word +property with reference to land; property--from proprium, my own--is +something pertaining to man. I have a property in myself. I have +the right to be free. All that proceeds from myself, my thoughts, my +writings, my works, are property; but no man made land, and therefore +it is not property. This incorrect application of the word is the more +striking in England, where the largest title a man can have is "tenancy +in fee," and a tenant holds but does not own. + +Sir William Blackstone places the possession of land upon a different +principle. He says that, as society became formed, its instinct was to +preserve the peace; and as a man who had taken possession of land could +not be disturbed without using force, each man continued to enjoy the +use of that which he had taken out of the common stock; but, he adds, +that right only lasted as long as the man lived. Death put him out of +possession, and he could not give to another that which he ceased to +possess himself. + +Vattel (book i., chap, vii.) tells us that "the whole earth is destined +to feed its inhabitants; but this it would be incapable of doing if it +were uncultivated. Every nation is then obliged by the law of nature to +cultivate the land that has fallen to its share, and it has no right +to enlarge its boundaries or have recourse to the assistance of other +nations, but in proportion as the land in its possession is incapable of +furnishing it with necessaries." He adds (chap. xx.), "When a nation +in a body takes possession of a country, everything that is not divided +among its members remains common to the whole nation, and is called +public property." + +An ancient Irish tract, which forms part of the Senchus Mor, and is +supposed to be a portion of the Brehon code, and traceable to the time +of St. Patrick, speaks of land in a poetically symbolic, but actually +realistic manner, and says, "Land is perpetual man." All the ingredients +of our physical frame come from the soil. The food we require and enjoy, +the clothing which enwraps us, the fire which warms us, all save +the vital spark that constitutes life, is of the land, hence it is +"perpetual man." Selden ("Titles of Honor," p. 27), when treating of +the title "King of Kings," refers to the eastern custom of homage, which +consisted not in offering the person, but the elements which composed +the person, EARTH and WATER--"the perpetual man" of the Brehons--to the +conqueror. He says: + +"So that both titles, those of King of Kings and Great King, were common +to those emperors of the two first empires; as also (if we believe the +story of Judith) that ceremonies of receiving an acknowledgment of regal +supremacy (which, by the way, I note here, because it was as homage +received by kings in that time from such princes or people as should +acknowledge themselves under their subjection) by acceptance upon their +demand of EARTH and WATER. This demand is often spoken of as used by the +Persian, and a special example of it is in Darius' letters to Induthyr, +King of the Scythians, when he first invites him to the field; but if +he would not, then bringing to your sovereign as gifts earth and water, +come to a parley. And one of Xerxes' ambassadors that came to demand +earth and water from the state of Lacedaemon, to satisfy him, was thrust +into a well and earth cast upon him." + +The earlier races seem to me, either by reasoning or by instinct, to +have arrived at the conclusion that every man was, in right of his +being, entitled to food; that food was a product of the land, and +therefore every man was entitled to the possession of land, otherwise +his life depended upon the will of another. The Romans acted on a +different principle, which was "the spoil to the victors." He who could +not defend and retain his possessions became the slave of the conqueror, +all the rights of the vanquished passed to the victor, who took and +enjoyed as ample rights to land as those naturally possessed by the +aborigines. + +The system of landholding varies in different countries, and we cannot +discover any idea of abstract right underlying the various differing +systems; they are the outcome of law, the will of the sovereign power, +which is liable to change with circumstances. The word LAW appears to be +used to express two distinct sentiments; one, the will of the sovereign +power, which being accompanied with a penalty, bears on its face the +idea that it may be broken by the individual who pays the penalty: +"Thou shalt not eat of the fruit of the tree, for on the day thou eatest +thereof thou shalt die," was a law. All laws, whether emanating from an +absolute monarch or from the representatives of the majority of a state, +are mere expressions of the will of the sovereign power, which may be +exacted by force. The second use of the word LAW is a record of our +experience--e.g., we see the tides ebb and flow, and conclude it is +done in obedience to the will of a sovereign power; but the word in that +sense does not imply any violation or any punishment. A distinction +must also be drawn between laws and codes; the former existed before +the latter. The lex non scripta prevailed before letters were invented. +Every command of the Decalogue was issued, and punishment followed for +its breach, before the existence of the engraved tables. The Brehon +code, the Justinian code, the Draconian code, were compilations of +existing laws; and the same may be said of the common or customary law +of England, of France, and of Germany. + +I am aware that recent analytical writers have sought to associate LAW +with FORCE, and to hold that law is a command, and must have behind it +sufficient force to compel submission. These writers find at the outset +of their examination, that customary law, the "Lex non scripta," existed +before force, and that the nomination to sovereign power was the outcome +of the more ancient customary law. These laws appear based upon the +idea of common good, and to have been supported by the "posse comitatus" +before standing armies or state constabularies were formed. Vattel says +(book i., chap. ii.), "It is evident that men form a political society, +and submit to laws solely for their own advantage and safety. The +sovereign authority is then established only for the common good of all +the citizens. The sovereign thus clothed with the public authority, +with everything that constitutes the moral personality of the nation, +of course becomes bound by the moral obligations of that nation and +invested with its rights." It appears evident, that customary law +was the will of small communities, when they were sovereign; that the +cohesion of such communities was a confirmation of such customs of each, +that the election of a monarch or a parliament was a recognition of +these customs, and that the moral and material FORCE or power of the +sovereign was the outcome of existing laws, and a confirmation thereof. +The application of the united force of the nation could be rightfully +directed to the requirements of ancient, though unwritten customary law, +and it could only be displaced by legislation, in which those concerned +took part. + +The duty of the sovereign (which in the United Kingdom means the Crown +and the two branches of the legislature) with regard to land, is thus +described by Vattel: + +"Of all arts, tillage or agriculture is doubtless the most useful +and necessary, as being the source whence the nation derives its +subsistence. The cultivation of the soil causes it to produce an +infinite increase. It forms the surest resource, and the most solid fund +of riches and commerce for a nation that enjoys a happy climate. The +sovereign ought to neglect no means of rendering the land under his +jurisdiction as well cultivated as possible.... Notwithstanding the +introduction of private property among the citizens, the nation has +still the right to take the most effectual measures to cause the +aggregate soil of the country to produce the greatest and most +advantageous revenue possible. The cultivation of the soil deserves +the attention of the Government, not only on account of the invaluable +advantages that flow from it, but from its being an obligation imposed +by nature on mankind." + +Sir Henry Maine thinks that there are traces in England of the commune +or MARK system in the village communities which are believed to have +existed, but these traces are very faint. The subsequent changes were +inherent in, and developed by, the various conquests that swept over +England; even that ancient class of holdings called "Borough English," +are a development of a war-like system, under which each son, as he came +to manhood, entered upon the wars, and left the patrimonial lands to the +youngest son. The system of gavel-kind which prevailed in the kingdom of +Kent, survived the accession of William of Normandy, and was partially +effaced in the reign of Henry VII. It was not the aboriginal or +communistic system, but one of its many successors. + +The various systems may have run one into the other, but I think there +are sufficiently distinct features to place them in the following order: + +1st. The Aboriginal. + +2d. The Roman, Population about 1,500,000. + +3d. The Scandinavian under the ANGLO-SAXON and Danish kings--A.D. 450 to +A.D. 1066. The population in 1066 was 2,150,000. + +4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the +latter year was 3,350,000. + +5th. The Plantagenet, from 1154 to 1485; in the latter the population +was 4,000,000. + +6th. The Tudor, 1485 to 1603, when the population was 5,000,000. + +7th. The Stuarts, 1603 to 1714, the population having risen to +5,750,000. + +8th. The Present, from 1714. Down to 1820 the soil supported the +population; now about one half lives upon food produced in other +countries. In 1874 the population was 23,648,607. + +Each of these periods has its own characteristic, but as I must compress +my remarks, you must excuse my passing rapidly from one to the other. + + + + +I. THE ABORIGINES. + + +The aboriginal period is wrapped in darkness, and I cannot with +certainty say whether the system that prevailed was Celtic and Tribal. +An old French customary, in a MS. treating upon the antiquity of +tenures, says: "The first English king divided the land into four parts. +He gave one part to the ARCH FLAMENS to pray for him and his posterity. +A second part he gave to the earls and nobility, to do him knight's +service. A third part he divided among husbandmen, to hold of him in +socage. The fourth he gave to mechanical persons to hold in burgage." +The terms used apply to a much more recent period and more modern ideas. + +Caesar tells us "that the island of Britain abounds in cattle, and the +greatest part of those within the country never sow their land, but +live on flesh and milk. The sea-coasts are inhabited by colonies from +Belgium, which, having established themselves in Britain, began to +cultivate the soil." + +Diodorus Siculus says, "The Britons, when they have reaped their corn, +by cutting the ears from the stubble, lay them up for preservation in +subterranean caves or granaries. From thence, they say, in very ancient +times, they used to take a certain quantity of ears out every day, +and having dried and bruised the grains, made a kind of food for their +immediate use." + +Jeffrey of Monmouth relates that one of the laws of Dunwalls Molnutus, +who is said to have reigned B.C. 500, enacted that the ploughs of the +husbandmen, as well as the temples of the gods, should be sanctuaries to +such criminals as fled to them for protection. + +Tacitus states that the Britons were not a free people, but were under +subjection to many different kings. + +Dr. Henry, quoting Tacitus, says, "In the ancient German and British +nation the whole riches of the people consisted in their flocks and +herds; the laws of succession were few and simple: a man's cattle, at +death, were equally divided among his sons; or, if he had no sons, his +daughters; or if he had no children, among his nearest relations. These +nations seem to have had no idea of the rights of primogeniture, or that +the eldest son had any title to a larger share of his father's effects +than the youngest." + +The population of England was scanty, and did not probably exceed a +million of inhabitants. They were split up into a vast number of +petty chieftainries or kingdoms; there was no cohesion, no means of +communication between them; there was no sovereign power which could +call out and combine the whole strength of the nation. No single +chieftain could oppose to the Romans a greater force than that of one +of its legions, and when a footing was obtained in the island, the +war became one of detail; it was a provincial rather that a national +contest. The brave, though untrained and ill-disciplined warriors, fell +before the Romans, just as the Red Man of North America was vanquished +by the English settlers. + + + + + +II. THE ROMAN. + + +The Romans acted with regard to all conquered nations upon the maxim, +"To the victors the spoils." Britain was no exception. The Romans were +the first to discover or create an ESTATE OF USES in land, as distinct +from an estate of possession. The more ancient nations, the Jews and +the Greeks, never recognized THE ESTATE OF USES, though there is some +indication of it in the relation established by Joseph in Egypt, when, +during the years of famine, he purchased for Pharaoh the lands of +the people. The Romans having seized upon lands in Italy belonging to +conquered nations, considered them public lands, and rented them to +the soldiery, thus retaining for the state the estate in the lands, but +giving the occupier an estate of uses. The rent of these public lands +was fixed at one tenth of the produce, and this was termed USUFRUCT--the +use of the fruits. + +The British chiefs, who submitted to the Romans, were subjected to a +tribute or rent in corn; it varied, according to circumstances, from one +fifth to one twentieth of the produce. The grower was bound to deliver +it at the prescribed places. This was felt to be a great hardship, as +they were often obliged to carry the grain great distances, or pay a +bribe to be excused. This oppressive law was altered by Julius Agricola. + +The Romans patronized agriculture--Cato says, "When the Romans designed +to bestow the highest praise on a good man, they used to say he +understood agriculture well, and is an excellent husbandman, for this +was esteemed the greatest and most honorable character." Their system +produced a great alteration in Britain, and converted it into the most +plentiful province of the empire; it produced sufficient corn for +its own inhabitants, for the Roman legions, and also afforded a great +surplus, which was sent up the Rhine. The Emperor Julian built new +granaries in Germany, in which he stored the corn brought from Britain. +Agriculture had greatly improved in England under the Romans. + +The Romans do not appear to have established in England any military +tenures of land, such as those they created along the Danube and the +Rhine; nor do they appear to have taken possession of the land; the tax +they imposed upon it, though paid in kind, was more of the nature of +a tribute than a rent. Though some of the best of the soldiers in the +Roman legions were Britons, yet their rule completely enervated +the aboriginal inhabitants--they were left without leaders, without +cohesion. Their land was held by permission of the conquerors. The wall +erected at so much labor in the north of England proved a less effectual +barrier against the incursions of the Picts and Scots than the living +barrier of armed men which, at a later period, successfully repelled +their invasions. The Roman rule affords another example that material +prosperity cannot secure the liberties of a people, that they must be +armed and prepared to repel by force any aggression upon their liberty +or their estates. + +"Who will be free, themselves must strike the blow." + +The prosperous "Britons," who were left by the Romans in possession +of the island, were but feeble representatives of those who, under +Caractacus and Boadicea, did not shrink from combat with the legions of +Caesar. Uninured to arms, and accustomed to obedience, they looked for a +fresh master, and sunk into servitude and serfdom, from which they never +emerged. Yet under the Romans they had thriven and increased in +material wealth; the island abounded in numerous flocks and herds; and +agriculture, which was encouraged by the Romans, flourished. This wealth +was by one of the temptations to the invaders, who seized not only upon +the movable wealth of the natives, but also upon the land, and divided +it among themselves. + +The warlike portion of the aboriginal inhabitants appear to have +joined the Cymri and retired westward. Their system of landholding was +non-feudal, inasmuch as each man's land was divided among all his sons. +One of the laws of Hoel Dha, King of Wales in the tenth century, decreed +"that the youngest son shall have an equal share of the estate with +the eldest son, and that when the brothers have divided their father's +estate among them, the youngest son shall have the best house with all +the office houses; the implements of husbandry, his father's kettle, his +axe for cutting wood, and his knife; these three last things the father +cannot give away by gift, nor leave by his last will to any but his +youngest son, and if they are pledged they shall be redeemed." It may +not be out of place here to say that this custom continued to exist in +Wales; and on its conquest Edward I. ordained, "Whereas the custom is +otherwise in Wales than England concerning succession to an inheritance, +inasmuch as the inheritance is partible among the heirs-male, and +from time whereof the memory of man is not to the contrary hath been +partible, Our Lord the King will not have such custom abrogated, but +willeth that inheritance shall remain partible among like heirs as it +was wont to be, with this exception that bastards shall from henceforth +not inherit, and also have portions with the lawful heirs; and if it +shall happen that any inheritance should hereafter, upon failure of +heirs-male, descend to females, the lawful heirs of their ancestors +last served thereof. We will, of our especial grace, that the same women +shall have their portions thereof, although this be contrary to the +custom of Wales before used." + +The land system of Wales, so recognized and regulated by Edward I., +remained unchanged until the reign of the first Tudor monarch. +Its existence raises the presumption that the aboriginal system of +landholding in England gave each son a share of his father's land, +and if so, it did not correspond with the Germanic system described by +Caesar, nor with the tribal system of the Celts in Ireland, nor with the +feudal system subsequently introduced. + +The polity of the Romans, which endured in Gaul, Spain, and Italy, +and tinged the laws and usages of these countries after they had +been occupied by the Goths, totally disappeared in England; and even +Christianity, which partially prevailed under the Romans, was submerged +beneath the flood of invasion. Save the material evidence of the +footprints of "the masters of the world" in the Roman roads, Roman wall, +and some other structures, there is no trace of the Romans in England. +Their polity, laws, and language alike vanished, and did not reappear +for centuries, when their laws and language were reimported. + +I should not be disposed to estimate the population of England and +Wales, at the retirement of the Romans, at more than 1,500,000. They +were like a flock of sheep without masters, and, deprived of the +watch-dogs which over-awed and protected them, fell an easy prey to the +invaders. + + + + + +III. THE SCANDINAVIANS. + + +The Roman legions and the outlying semi-military settlements along the +Rhine and the Danube, forming a cordon reaching from the German Ocean to +the Black Sea, kept back the tide of barbarians, but the volume of +force accumulated behind the barrier, and at length it poured in an +overwhelming and destructive tide over the fair and fertile provinces +whose weak and effeminate people offered but a feeble resistance to the +robust armies of the north. The Romans, under the instruction of Caesar +and Tacitus, had a faint idea of the usages of the people inhabiting the +verge that lay around the Roman dominions, but they had no knowledge +of the influences that prevailed in "the womb of nations," as Central +Europe appeared to the Latins, who saw emerging therefrom hosts of +warriors, bearing with them their wives, their children, and their +portable effects, determined to win a settlement amid the fertile +regions owned and improved by the Romans. + +These incursions were not colonization in the sense in which Rome +understood it; they were the migrations of a people, and were as +full, as complete, and as extensive as the Israelitish invasion of +Canaan--they were more destructive of property, but less fatal to life. +These migratory hosts left a desert behind them, and they either gained +a settlement or perished. The Roman colonies preserved their connection +with the parent stem, and invoked aid when in need; but the barbarian +hosts had no home, no reserves. Other races, moving with similar intent, +settled on the land they had vacated. These brought their own social +arrangements, and it is very difficult to connect the land system +established by the aborigines with the system which, after a lapse of +some hundreds of years, was found to prevail in another tribe or nation +which had occupied the region that had been vacated. + +Neither Caesar nor Tacitus gives us any idea of the habits or usages +of the people who lived north of the Belgae. They had no notion of +Scandinavia nor of Sclavonia. The Walhalla of the north, with its +terrific deities, was unknown to them; and I am disposed to think that +we shall look in vain among the customs of the Teutons for the basis +from whence came the polity established in England by the invaders of +the fifth century. The ANGLO-SAXONs came from a region north of the +Elbe, which we call Schleswig--Holstein. They were kindred to the +Norwegians and the Danes, and of the family of the sea robbers; they +were not Teutons, for the Teutons were not and are not sailors. The +Belgae colonized part of the coast--i.e., the settlers maintained a +connection with the mainland; but the Angles, the Saxons, and the Jutes +did not colonize, they migrated; they left no trace of their occupancy +in the lands they vacated. Each separate invasion was the settlement of +a district; each leader aspired to sovereignty, and was supreme in +his own domains; each claimed descent from Woden, and, like Romulus or +Alexander, sought affinity with the gods. Each member of the Heptarchy +was independent of, and owed no allegiance to, the other members; and +marriage or conquest united them ultimately into one kingdom. + +The primary institutions were moulded by time and circumstance, and the +state of things in the eleventh century was as different from that of +the fifth as those of our own time differ from the rule of Richard II. +Yet one was as much an outgrowth of its predecessor as the other. + +Attempts have been made, with considerable ingenuity, to connect races +with each other by peculiar characteristics, but human society has the +same necessities, and we find great similarity in various divisions of +society. At all times, and in all nations, society resolved itself into +the upper, middle, and lower classes. Rome had its Nobles, Plebeians, +and Slaves; Germany its Edhilingi, Frilingi, and Lazzi; England its +Eaorls, Thanes, and Ceorls. It would be equally cogent to argue that, +because Rome had three classes and England had three classes, the latter +was derived from the former, as to conclude that, because Germany had +three classes, therefore English institutions were Teutonic. If the +invasion of the fifth century were Teutonic we should look for similar +nomenclature, but there is as great a dissimilarity between the English +and German names of the classes as between the former and those of Rome. + +The Germanic MARK system has no counterpart in the land system +introduced into England by the ANGLO-SAXONs. If village communities +existed in England, it must have been before the invasion of the Romans. +The German system, as described by Caesar, was suited to nomads--to +races on the wing, who gave to no individual possession for more than +a year, that there might be no home ties. The mark system is of a later +date, and was evidently the arrangement of other races who permanently +settled themselves upon the lands vacated by the older nations. And I +may suggest whether, as these lands were originally inhabited by the +Celts, the conquerors did not adopt the system of the conquered. + +Even in the nomenclature of FEUDALISM, introduced into England in the +fifth century, we are driven back to Scandinavia for an explanation. +The word FEUDAL as applied to land has a Norwegian origin, from which +country came Rollo, the progenitor of William the Norman. Pontoppidan +("History of Norway," p.290) says "The ODHALL, right of Norway, and +the UDALL, right of Finland, came from the words 'Odh,' which signifies +PROPRIETORS, and 'all,' which means TOTUM. A transposition of these +syllables makes ALL ODH, or ALLODIUM, which means absolute property. +FEE, which means stipend or pay, united with OTH, thus forming FEE-OTH +or FEODUM, denoting stipendiary property. Wacterus states that the word +ALLODE, ALLODIUM, which applies to land in Germany, is composed of AN +and LOT--i.e., land obtained by lot. + +I therefore venture the opinion that the settlement of England in +the fifth and sixth centuries was not Teutonic or Germanic, but +SCANDINAVIAN. + +The lands won by the swords of all were the common property of all; they +were the lands of the people, FOLC-LAND; they were distributed by lot +at the FOLC-GEMOT; they were ODH-ALL lands; they were not held of +any superior nor was there any service save that imposed by the common +danger. The chieftains were elected and obeyed, because they represented +the entire people. Hereditary right seems to have been unknown. The +essence of feudalism WAS A LIFE ESTATE, the land reverted either to the +sovereign or to the people upon the death of the occupant. At a later +period the monarch claimed the power of confiscating land, and of giving +it away by charter or deed; and hence arose the distinction between +FOLC-LAND and BOC-LAND (the land of the book or charter), a distinction +somewhat similar to the FREEHOLD and COPYHOLD tenures of the present +day. King Alfred the Great bequeathed "his BOC-LAND to his nearest +relative; and if any of them have children it is more agreeable to me +that it go to those born on the male side." He adds, "My grandfather +bequeathed his land on the spear side, not on the spindle side; +therefore if I have given what he acquired to any on the female side, +let my kinsman make compensation." + +The several ranks were thus defined by Athelstane: + +"1st. It was whilom in the laws of the English that the people went by +ranks, and these were the counsellors of the nation, of worship +worthy each according to his condition--'eorl,' 'ceorl,' 'thegur,' and +'theodia.' + +"2d. If a ceorl thrived, so that he had fully five hides (600 acres) of +land, church and kitchen, bell-house and back gatescal, and special duty +in the king's hall, then he was thenceforth of thane-right worthy. + +"3d. And if a thane thrived so that he served the king, and on his +summons rode among his household, if he then had a thane who him +followed, who to the king utward five hides, had, and in the king's hall +served his lord, and thence, with his errand, went to the king, he might +thenceforth, with his fore oath, his lord represent at various needs, +and his and his plant lawfully conduct wheresoever he ought. + +"4th. And he who so prosperous a vicegerent had not, swore for himself +according to his right or it forfeited. + +"5th. And if a 'thane' thrived so that he became an eorl, then was he +thenceforth of eorl-right worthy. + +"6th. And if a merchant thrived so that he fared thrice over the +wide sea by his own means (or vessels), then was he thenceforth of +thane-right worthy." + +The oath of fealty, as prescribed by the law of Edward and Guthrum, was +very similar to that used at a later period, and ran thus: + +"Thus shall a man swear fealty: By the Lord, before whom this relic is +holy, I will be faithful and true, and love all that he loves, and shun +all that he shuns, according to God's law, and according to the world's +principles, and never by will nor by force, by word nor by work, do +aught of what is loathful to him, on condition that he me keep, as I am +willing to deserve, and all that fulfil, that our agreement was, when I +to him submitted and chose his will." + +The Odh-all (noble) land was divided into two classes: the in-lands, +which were farmed by slaves under Bailiffs, and the out-lands, which +were let to ceorls either for one year or for a term. The rents were +usually paid in kind, and were a fixed proportion of the produce. Ina, +King of the West Saxons, fixed the rent of ten hides (1200 acres), in +the beginning of the eighth century, as follows: 10 casks honey, 12 +casks strong ale, 30 casks small ale, 300 loaves bread, 2 oxen, 10 +wedders, 10 geese, 20 hens, 10 chickens, 10 cheeses, 1 cask butter, +5 salmon, 20 lbs. forage, and 100 eels. In the reign of Edgar the +Peaceable (tenth century), land was sold for about four shillings of +the then currency per acre. The Abbot of Ely bought an estate about this +time, which was paid for at the rate of four sheep or one horse for each +acre. + +The FREEMEN (LIBERI HOMINES) were a very numerous class, and all were +trained in the use of arms. Their FOLC-LAND was held under the penalty +of forfeiture if they did not take the field, whenever required for the +defence of the country. In addition, a tax, called Danegeld, was levied +at a rate varying from two shillings to seven shillings per hide of land +(120 acres); and in 1008, each owner of a large estate, 310 hides, was +called on to furnish a ship for the navy. + +Selden ("Laws and Government of England," p. 34) thus describes the +FREEMEN among the Saxons, previous to the Conquest: + +"The next and most considerable degree of all the people is that of the +FREEMEN, anciently called Frilingi, [Footnote: This is a Teutonic, not +an ANGLO-SAXON term; the ANGLO-SAXON word is Thane.] or Free-born, or +such as are born free from all yoke of arbitrary power, and from all law +of compulsion, other than what is made by their voluntary consent, for +all FREEMEN have votes in the making and executing of the general laws +of the kingdom. In the first, they differed from the Gauls, of whom +it is noted that the commons are never called to council, nor are much +better than servants. In the second, they differ from many free +people, and are a degree more excellent, being adjoined to the lords in +judicature, both by advice and power (consilium et authoritates adsunt), +and therefore those that were elected to that work were called Comites +ex plebe, and made one rank of FREEMEN for wisdom superior to the rest. +Another degree of these were beholden for their riches, and were called +Custodes Pagani, an honorable title belonging to military service, and +these were such as had obtained an estate of such value as that their +ordinary arms were a helmet, a coat of mail, and a gilt sword. The rest +of the FREEMEN were contented with the name of Ceorls, and had as sure +a title to their own liberties as the Custodes Pagani or the country +gentlemen had." + +Land was liable to be seized upon for treason and forfeited; but even +after the monarchs had assumed the functions of the FOLC-GEMOT, they +were not allowed to give land away without the approval of the great +men; charters were consented to and witnessed in council. "There is +scarcely a charter extant," says Chief Baron Gilbert, "that is not proof +of this right." The grant of Baldred, King of Kent, of the manor of +Malling, in Sussex, was annulled because it was given without the +consent of the council. The subsequent gift thereof, by Egbert and +Athelwolf, was made with the concurrence and assent of the great men. +The kings' charters of escheated lands, to which they had succeeded by a +personal right, usually declared "that it might be known that what they +gave was their own." + +Discussions have at various times taken place upon the question, "Was +the land-system of this period FEUDAL?" It engaged the attention of the +Irish Court of King's Bench, in the reign of Charles I., and was raised +in this way: James I. had issued "a commission of defective titles." Any +Irish owner, upon surrendering his land to the king, got a patent +which reconvened it on him. Wentworth (Lord Stafford) wished to SETTLE +Connaught, as Ulster had been SETTLED in the preceding reign, and, to +accomplish it, tried to break the titles granted under "the commission +of defective titles." Lord Dillon's case, which is still quoted as an +authority, was tried. The plea for the Crown alleged that the honor of +the monarch stood before his profit, and as the commissioners were only +authorized to issue patents to hold in capite, whereas they had given +title "to hold in capite, by knights' service out of Dublin Castle," the +grant was bad. In the course of the argument, the existence of feudal +tenures, before the landing of William of Normandy, was discussed, +and Sir Henry Spelman's views, as expressed in the Glossary, were +considered. The Court unanimously decided that feudalism existed in +England under the ANGLO-SAXONs, and it affirmed that Sir Henry Spelman +was wrong. This decision led Sir Henry Spelman to write his "Treatise on +Feuds," which was published after his death, in which he reasserted +the opinion that feudalism was introduced into England at the Norman +invasion. This decision must, however, be accepted with a limitation; +I think there was no separate order of NOBILITY under the ANGLO-SAXON +rule. The king had his councillors, but there appears to have been no +order between him and the FOLC-GEMOT. The Earls and the Thanes met with +the people, but did not form a separate body. The Thanes were country +gentleman, not senators. The outcome of the heptarchy was the Earls or +Ealdermen; this was the only order of nobility among the Saxons; they +corresponded to the position of lieutenants of counties, and were +appointed for life. In 1045 there were nine such officers; in 1065 there +were but six. Harold's earldom, at the former date, comprised Norfolk, +Suffolk, Essex, and Middlesex; and Godwin's took in the whole south +coast from Sandwich to the Land's End, and included Kent, Sussex, +Hampshire, Wilts, Devonshire, and Cornwall. Upon the death of Godwin, +Harold resigned his earldom, and took that of Godwin, the bounds being +slightly varied. Harold retained his earldom after he became king, but +on his death it was seized upon by the Conqueror, and divided among his +followers. + +The Crown relied upon the LIBERI HOMINES or FREEMEN. The country was not +studded with castles filled with armed men. The HOUSE of the Thane was +an unfortified structure, and while the laws relating to land were, in +my view, essentially FEUDAL, the government was different from that +to which we apply the term FEUDALISM, which appears to imply baronial +castles, armed men, and an oppressed people. + +I venture to suggest to some modern writers that further inquiry will +show them that FOLC-LAND was not confined to commonages, or unallotted +portions, but that at the beginning it comprised all the land of the +kingdom, and that the occupant did not enjoy it as owner-in-severalty; +he had a good title against his fellow subjects, but he held under the +FOLC-GEMOT, and was subject to conditions. The consolidation of the +sovereignty, the extension of laws of forfeiture, the assumption by +the kings of the rights of the popular assemblies, all tended to the +formation of a second set of titles, and BOC-LAND became an object of +ambition. The same individual appears to have held land by both titles, +and to have had greater powers over the latter than over the former. + +Many of those who have written on the subject seem to me to have failed +to grasp either the OBJECT or the GENIUS of FEUDALISM. It was the device +of conquerors to maintain their possessions, and is not to be found +among nations, the original occupiers of the land, nor in the conquests +of states which maintained standing armies. The invading hosts elected +their chieftain, they and he had only a life use of the conquests. Upon +the death of one leader another was elected, so upon the death of the +allottee of a piece of land it reverted to the state. The GENIUS of +FEUDALISM was life ownership and non-partition. Hence the oath of fealty +was a personal obligation, and investiture was needful before the +new feudee took possession. The state, as represented by the king or +chieftain, while allowing the claim of the family, exercised its right +to select the individual. All the lands were considered BENEFICIA, +a word which now means a charge upon land, to compensate for duties +rendered to the state. Under this system, the feudatory was a commander, +his residence a barrack, his tenants soldiers; it was his duty to keep +down the aborigines, and to prevent invasion. He could neither sell, +give, nor bequeath his land. He received the surplus revenue as payment +for personal service, and thus enjoyed his BENEFICE. Judged in this way, +I think the feudal system existed before the Norman Conquest. Slavery +and serfdom undoubtedly prevailed. The country prospered under the +Scandinavians; and, from the great abundance of corn, William of +Poitiers calls England "the store-house of Ceres." + + + + + +IV. THE NORMANS. + + +The invasion of William of Normandy led to results which have been +represented by some writers as having been the most momentous in English +history. I do not wish in any way to depreciate their views, but it +seems to me not to have been so disastrous to existing institutions, as +the Scandinavian invasion, which completely submerged all former usages. +No trace of Roman occupation survived the advent of the ANGLO-SAXONs; +the population was reduced to and remained in the position of serfs, +whereas the Norman invasion preserved the existing institutions of the +nation, and subsequent changes were an outgrowth thereof. + +When Edward the Confessor, the last descendant of Cedric, was on +his deathbed, he declared Harold to be his successor, but William of +Normandy claimed the throne under a previous will of the same monarch. +He asked for the assistance of his own nobles and people in the +enterprise, but they refused at first, on the ground that their feudal +compact only required them to join in the defence of their country, +and did not coerce them into affording him aid in a completely new +enterprise; and it was only by promising to compensate them out of the +spoils that he could secure their co-operation. A list of the number +of ships supplied by each Norman chieftain appears in Lord Lyttleton's +"History of Henry III." vol. i., appendix. + +I need hardly remind you that the settlers in Normandy were from Norway, +or that they had been expelled from their native land in consequence of +their efforts to subvert its institutions, and to make the descent of +land hereditary, instead of being divisible among all the sons of the +former owner. Nor need I relate how they won and held the fair provinces +of northern France--whether as a fief of the French Crown or not, is an +open question. But I should wish you to bear in mind their affinity to +the ANGLO-SAXONs, to the Danes, and to the Norwegians, the family of Sea +Robbers, whose ravages extended along the coasts of Europe as far +south as Gibraltar, and, as some allege, along the Mediterranean. Some +questions have been raised as to the means of transport of the Saxons, +the Jutes, and the Angles, but they were fully as extensive as those by +which Rollo invaded France or William invaded England. + +William strengthened his claim to the throne by his military success, +and by a form of election, for which there were many previous +precedents. Those who called upon him to ascend it alleged "that they +had always been ruled by legal power, and desired to follow in that +respect the example of their ancestors, and they knew of no one more +worthy than himself to hold the reins of government." + +His alleged title to the crown, sanctioned by success and confirmed +by election, enabled him, in conformity with existing institutions, to +seize upon the lands of Harold and his adherents, and to grant them as +rewards to his followers. Such confiscation and gifts were entirely in +accord with existing usages, and the great alteration which took place +in the principal fiefs was more a change of persons than of law. A large +body of the aboriginal people had been, and continued to be, serfs or +villeins; while the mass of the FREEMEN (LIBERI HOMINES) remained in +possession of their holdings. + +It may not be out of place here to say a few words about this important +class, which is in reality the backbone of the British constitution; +it was the mainstay of the ANGLO-SAXON monarchy; it lost its influence +during the civil wars of the Plantagenets, but reasserted its power +under Cromwell. Dr. Robertson thus draws the line between them and the +vassals: + +"In the same manner Liber homo is commonly opposed to Vassus or +Vassalus, the former denoting an allodial proprietor, the latter one who +held of a superior. These FREEMEN were under an obligation to serve +the state, and this duty was considered so sacred that FREEMEN were +prohibited from entering into holy orders, unless they obtained the +consent of the sovereign." + +De Lolme, chap. i., sec. 5, says: + +"The Liber homo, or FREEMAN, has existed in this country from the +earliest periods, as well as of authentic as of traditionary history, +entitled to that station in society as one of his constitutional rights, +as being descended from free parents in contradistinction to 'villains,' +which should be borne in remembrance, because the term 'FREEMAN' has +been, in modern times, perverted from its constitutional signification +without any statutable authority." The LIBERI HOMINES are so described +in the Doomsday Book. They were the only men of honor, faith, trust, +and reputation in the kingdom; and from among such of these as were not +barons, the knights did choose jurymen, served on juries themselves, +bare offices, and dispatched country business. Many of the LIBERI +HOMINES held of the king in capite, and several were freeholders of +other persons in military service. Their rights were recognized and +guarded by the 55th William I.; [Footnote: "LV.--De Chartilari seu +Feudorum jure et Ingenuorum immunitate. Volumus etiam ac firmiter +praecipimus et concedimus ut omnes LIBERI HOMINES totius Monarchiae +regni nostri praedicti habeant et teneant terras suas et possessiones +suas bene et in pace, liberi ab omni, exactione iniusta et ab omni +Tallagio: Ita quod nihil ab eis exigatur vel capiatur nisi servicium +suum liberum quod de iure nobis facere debent et facere tenentur +et prout statutum est eis et illis a nobis datum et concessum iure +haereditario imperpetuum per commune consilium totius regni nostri +praeicti."] it is entitled: + +"CONCERNING CHEUTILAR OR FEUDAL RIGHTS, AND THE IMMUNITY OF FREEMEN. + +"We will also, and strictly, enjoin and concede that all FREEMEN (LIBERI +HOMINES) of our whole kingdom aforesaid, have and hold their land and +possessions well and in peace, free from every unjust exaction and from +Tallage, so that nothing be exacted or taken from them except their free +service, which of right they ought to do to us and are bound to do, and +according as it was appointed (statutum) to them, and given to them by +us, and conceded by hereditary right for ever, by the common council +(FOLC-GEMOT} of our whole realm aforesaid." + +These FREEMEN were not created by the Norman Conquest, they existed +prior thereto; and the laws, of which this is one, are declared to be +the laws of Edward the Confessor, which William re-enacted. Selden, in +"The Laws and Government of England," p. 34, speaks of this law as the +first Magna Charta. He says: + +"Lastly, the one law of the kings, which may be called the first MAGNA +CHARTA in the Norman times (55 William I.), by which the king reserved +to himself, from the FREEMEN of this kingdom, nothing but their free +service, in the conclusion saith that their lands were thus granted to +them in inheritance of the king by the COMMON COUNCIL (FOLC-GEMOT) of +the whole kingdom; and so asserts, in one sentence, the liberty of the +FREEMEN, and of the representative body of the kingdom." + +He further adds: + +"The freedom of an ENGLISHMAN consisteth of three particulars: first, in +OWNERSHIP; second, in VOTING ANY LAW, whereby ownership is maintained; +and, thirdly, in having an influence upon the JUDICIARY POWER that must +apply the law. Now the English, under the Normans, enjoyed all this +freedom with each man's own particular, besides what they had in bodies +aggregate. This was the meaning of the Normans, and they published the +same to the world in a fundamental law, whereby is granted that all +FREEMEN shall have and hold their lands and possessions in hereditary +right for ever; and by this they being secured from forfeiture, they are +further saved from all wrong by the same law, which provideth that they +shall hold them well or quietly, and in peace, free from all unjust tax, +and from all Tallage, so as nothing shall be exacted nor taken but their +free service, which, by right, they are bound to perform." + +This is expounded in the law of Henry I., cap. 4, to mean that no +tribute or tax shall be taken but what was due in the Confessor's time, +and Edward II. was sworn to observe the laws of the Confessor. + +The nation was not immediately settled. Rebellions arose either from the +oppression of the invaders or the restlessness of the conquered; and, +as each outburst was put down by force, there were new lands to be +distributed among the adherents of the monarch; ultimately there were +about 700 chief tenants holding IN CAPITE, but the nation was divided +into 60,215 knights' fees, of which the Church held 28,115. The king +retained in his own hands 1422 manors, besides a great number of +forests, parks, chases, farms, and houses, in all parts of the kingdom; +and his followers received very large holdings. + +Among the Saxon families who retained their land was one named +Shobington in Bucks. Hearing that the Norman lord was coming to whom +the estate had been gifted by the king, the head of the house armed his +servants and tenants, preparing to do battle for his rights; he cast up +works, which remain to this day in grassy mounds, marking the sward of +the park, and established himself behind them to await the despoiler's +onset. It was the period when hundreds of herds of wild cattle roamed +the forest lands of Britain, and, failing horses, the Shobingtons +collected a number of bulls, rode forth on them, and routed the Normans, +unused to such cavalry. William heard of the defeat, and conceived a +respect for the brave man who had caused it; he sent a herald with a +safe conduct to the chief, Shobington, desiring to speak with him. Not +many days after, came to court eight stalwart men riding upon bulls, the +father and seven sons. "If thou wilt leave me my lands, O king," said +the old man, "I will serve thee faithfully as I did the dead Harold." +Whereupon the Conqueror confirmed him in his ownership, and named the +family Bullstrode, instead of Shobington. + +Sir Martin Wright, in his "Treatise on Tenures," published in 1730, p. +61, remarks: + +"Though it is true that the possessions of the Normans were of a sudden +very great, and that they received most of them from the hands of +William I., yet it does not follow that the king took all the lands of +England out of the hands of their several owners, claiming them as +his spoils of war, or as a parcel of a conquered country; but, on the +contrary, it appears pretty plain from the history of those times that +the king either had or pretended title to the crown, and that his +title, real or pretended, was established by the death of Harold, +which amounted to an unquestionable judgment in his favor. He did not +therefore treat his opposers as enemies, but as traitors, agreeably to +the known laws of the kingdom which subjected traitors not only to the +loss of life but of all their possessions." + +He adds (p. 63): + +"As William I. did not claim to possess himself of the lands of +England as the spoils of conquest, so neither did he tyrannically and +arbitrarily subject them to feudal dependence; but, as the fedual law +was at that time the prevailing law of Europe, William I., who had +always governed by this policy, might probably recommend it to our +ancestors as the most obvious and ready way to put them upon a footing +with their neighbors, and to secure the nation against any future +attempts from them. We accordingly find among the laws of William I. a +law enacting feudal law itself, not EO NOMINE, but in effect, inasmuch +as it requires from all persons the same engagements to, and introduces +the same dependence upon, the king as supreme lord of all the lands of +England, as were supposed to be due to a supreme lord by the feudal law. +The law I mean is the LII. law of William I." + +This view is adopted by Sir William Blackstone, who writes (vol. ii., p. +47): + +"From the prodicious slaughter of the English nobility at the battle +of Hastings, and the fruitless insurrection of those who survived, such +numerous forfeitures had accrued that he (William) was able to reward +his Norman followers with very large and extensive possessions, which +gave a handle to monkish historians, and such as have implicitly +followed them to represent him as having by the right of the sword, +seized upon all the lands of England, and dealt them out again to his +own favorites--a supposition grounded upon a mistaken sense of the +word conquest, which in its feudal acceptation signifies no more +than acquisition, and this has led many hasty writers into a strange +historical mistake, and one which, upon the slightest examination, will +be found to be most untrue. + +"We learn from a Saxon chronicle (A.D. 1085), that in the nineteenth +year of King William's reign, an invasion was apprehended from Denmark; +and the military constitution of the Saxons being then laid aside, and +no other introduced in its stead, the kingdom was wholly defenceless; +which occasioned the king to bring over a large army of Normans and +Britons who were quartered upon, and greatly oppressed, the people. This +apparent weakness, together with the grievances occasioned by a foreign +force, might co-operate with the king's remonstrance, and better incline +the nobility to listen to his proposals for putting them in a position +of defence. For, as soon as the danger was over, the king held a +great council to inquire into the state of the nation, the immediate +consequence of which was the compiling of the great survey called the +Doomsday Book, which was finished the next year; and in the end of that +very year (1086) the king was attended by all his nobility at Sarum, +where the principal landholders submitted their lands to the yoke of +military tenure, and became the king's vassals, and did homage and +fealty to his person." + +Mr. Henry Hallam writes: + +"One innovation made by William upon the feudal law is very deserving of +attention. By the leading principle of feuds, an oath of fealty was due +from the vassal to the lord of whom he immediately held the land, and +no other. The King of France long after this period had no feudal, and +scarcely any royal, authority over the tenants of his own vassals; but +William received at Salisbury, in 1085, the fealty of all landholders in +England, both those who held in chief and their tenants, thus breaking +in upon the feudal compact in its most essential attribute--the +exclusive dependence of a VASSAL upon his lord; and this may be reckoned +among the several causes which prevented the continental notions of +independence upon the Crown from ever taking root among the English +aristocracy." + +A more recent writer, Mr. FREEMAN ("History of the Norman Conquest," +published in 1871, vol. iv., p. 695), repeats the same idea, though +not exactly in the same words. After describing the assemblage which +encamped in the plains around Salisbury, he says: + +"In this great meeting a decree was passed, which is one of the most +memorable pieces of legislation in the whole history of England. In +other lands where military tenure existed, it was beginning to be held +that he who plighted his faith to a lord, who was the man of the king, +was the man of that lord only, and did not become the man of the king +himself. It was beginning to be held that if such a man followed his +immediate lord to battle against the common sovereign, the lord might +draw on himself the guilt of treason, but the men that followed him +would be guiltless. William himself would have been amazed if any vassal +of his had refused to draw his sword in a war with France on the score +of duty toward an over-lord. But in England, at all events, William +was determined to be full king over the whole land, to be immediate +sovereign and immediate lord of every man. A statute was passed that +every FREEMAN in the realm should take the oath of fealty to King +William." + +Mr. FREEMAN quotes Stubbs's "Select Charters," p. 80, as his authority. +Stubbs gives the text of that charter, with ten others. He says: "These +charters are from 'Textus Roffensis,' a manuscript written during the +reign of Henry I.; it contains the sum and substance of all the legal +enactments made by the Conqueror independent of his confirmation of the +earlier laws." It is as follows: "Statuimus etiam ut OMNIS LIBER HOMO +feodere et sacramento affirmet, quod intra et extra Angliam Willelmo +regi fideles esse volunt, terras et honorem illius omni fidelitate cum +eo servare et eum contra inimicos defendere." + +It will be perceived that Mr. Hallam reads LIBER HOMO as "vassal." Mr. +FREEMAN reads them as "FREEMAN," while the older authority, Sir Martin +Wright, says: "I have translated the words LIBERI HOMINES, 'owners of +land,' because the sense agrees best with the tenor of the law." + +The views of writers of so much eminence as Sir Martin Wright, Sir +William Blackstone, Mr. Henry Hallam, and Mr. FREEMAN, are entitled to +the greatest respect and consideration, and it is with much diffidence I +venture to differ from them. The three older writers appear to have had +before them the LII of William I., the latter the alleged charter +found in the "Textus Roffensis;" but as they are almost identical in +expression, I treat the latter as a copy of the former, and I do not +think it bears out the interpretation sought to be put upon it--that it +altered either the feudalism of England, or the relation of the vassal +to his lord; and it must be borne in mind that not only did William +derive his title to the crown from Edward the Confessor, but he +preserved the apparent continuity, and re-enacted the laws of +his predecessor. Wilkins' "Laws of the ANGLO-SAXONs and Normans," +republished in 1840 by the Record Commissioners, gives the following +introduction: + +"Here begin the laws of Edward, the glorious king of England. + +"After the fourth year of the succession to the kingdom of William of +this land, that is England, he ordered all the English noble and wise +men and acquainted with the law, through the whole country, to be +summoned before his council of barons, in order to be acquainted with +their customs, Having therefore selected from all the counties twelve, +they were sworn solemnly to proceed as diligently as they might to write +their laws and customs, nothing omitting, nothing adding, and nothing +changing." + +Then follow the laws, thirty-nine in number, thus showing the continuity +of system, and proving that William imposed upon his Norman followers +the laws of the ANGLO-SAXONs. They do not include the LII. William +I., to which I shall refer hereafter. I may, however, observe that the +demonstration at Salisbury was not of a legislative character; and that +it was held in conformity with ANGLO-SAXON usages. If, according to +Stubbs, the ordinance was a charter, it would proceed from the king +alone. The idea involved in the statements of Sir Martin Wright, Mr. +Hallam, and Mr. FREEMAN, that the VASSAL OF A LORD was then called on +to swear allegiance to the KING, and that it altered the feudal bond in +England, is not supported by the oath of vassalage. In swearing fealty, +the vassal knelt, placed his hands between those of his lord's, and +swore: + +"I become your man from this day forward, of life and limb, and of +earthly worship, and unto you shall be true and faithful, and bear you +faith for the tenements at that I claim to hold of you, saving the faith +that I owe unto our Sovereign Lord the King." + +This shows that it was unnecessary to call vassals to Salisbury to +swear allegiance. The assemblage was of the same nature and character as +previous meetings. It was composed of the LIBERI HOMINES, the FREEMEN, +described by the learned John Selden (ante, p. 10), and by Dr. Robertson +and De Lolme (ante, pp. 12, 13). + +But there is evidence of a much stronger character, which of itself +refutes the views of these writers, and shows that the Norman system, +at least during the reign of William I., was a continuation of that +existing previous to his succession to the throne; and that the meeting +at Salisbury, so graphically portrayed, did not effect that radical +change in the position of English landholders which has been stated. +I refer to the works of EADMERUS; he was a monk of Canterbury who +was appointed Bishop of St. Andrews, and declined or resigned +the appointment because the King of Scotland refused to allow his +consecration by the Archbishop of Canterbury. His history includes the +reigns of William I., William II., and Henry I., from 1066 to 1122, and +he gives, at page 173, the laws of Edward the Confessor, which William +I. gave to England; they number seventy-one, including the LII. law +quoted by Sir Martin Wright. The introduction to these laws is in Latin +and Norman-French, and is as follows: + +"These are the laws and customs which King William granted to the whole +people of England after he had conquered the land, and they are those +which KING EDWARD HIS PREDECESSOR observed before him." + + [Footnote: The laws of William are given in a work entitled + "Eadmeri Monachi Cantuariensis Historia Novorum," etc. It + includes the reigns of William I. and II., and Henry I., + from 1066 to 1122, and is edited by John Selden. Page 173 + has the following: + + "Hae sunt Leges et Consuetudines quas Willielmus Rex + concessit universo Populo Angliae post subactam terram. + Eaedum sunt quas Edwardus Rex cognatus ejus obscruauit ante + eum. + + "Ces sont les leis et les Custums que le Rui people de + Engleterre apres le Conquest de le Terre. Ice les meismes + que le Rui Edward sun Cosin tuit devant lui. + + "LII. + + "De fide et obsequio erga Regnum. + + "Statuimus etiam ut omnes liiben homines foedere et + sacramento affirment quod intra et extra universum regnum + Anglias (quod olim vocabatur regnum Britanniae) Willielmo + suo domino fideles esse volunt, terras et honores illins + fidelitate ubique servare cum eo et contra inimicos et + alienigonas defendere."] + +This simple statement gets rid of the theory of Sir Martin Wright, of +Sir William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that William +introduced a new system, and that he did so either as a new feudal law +or as an amendment upon the existing feudalism. The LII. law, quoted by +Wright, is as follows: + +"We have decreed that all FREE MEN should affirm on oath, that both +within and without the whole kingdom of England (which is called +Britain) they desire to be faithful to William their lord, and +everywhere preserve unto him his land and honors with fidelity, and +defend them against all enemies and strangers." + +Eadmerus, who wrote in the reign of Henry I., gives the LII. William I. +as a confirmatory law. The charter given by Stubbs is a contraction +of the law given by Eadmerus. The former uses the words OMNES LIBERI +HOMINES; the latter, the words OMNIS LIBERI HOMO. Those interested can +compare them, as I shall give the text of each side by side. + +Since the paper was read, I have met with the following passage in +Stubbs's "Constitutional History of England," vol. i., p. 265: + +"It has been maintained that a formal and definitive act, forming the +initial point of the feudalization of England, is to be found in a +clause of the laws, as they are called, of the Conqueror, which directs +that every FREEMAN shall affirm, by covenant and oath, that 'he will be +faithful to King William within England and without, will join him +in preserving his land with all fidelity, and defend him against his +enemies.' But this injunction is little more than the demand of the oath +of allegiance taken to the Anglo-Saxon kings, and is here required +not of every feudal dependant of the king, but of every FREEMAN or +freeholder whatsoever. In that famous Council of Salisbury, A. D, 1086, +which was summoned immediately after the making of the Doomsday survey, +we learn, from the 'Chronicle,' that there came to the king 'all his +witan and all the landholders of substance in England, whose vassals +soever they were, and they all submitted to him and became his men, and +swore oaths of allegiance that they would be faithful to him against all +others.' In the act has been seen the formal acceptance and date of the +introduction of feudalism, but it has a very different meaning. The oath +described is the oath of allegiance, combined with the act of homage, +and obtained from all landowners whoever their feudal lord might be. +It is a measure of precaution taken against the disintegrating power +of feudalism, providing a direct tie between the sovereign and all +freeholders which no inferior relations existing between them and the +mesne lords would justify them in breaking." + +I have already quoted from another of Stubbs's works, "Select Charters," +the charter which he appears to have discovered bearing upon this +transaction, and now copy the note, giving the authorities quoted +by Stubbs, with reference to the above passage. He appears to have +overlooked the complete narration of the alleged laws of William I., +given by Eadmerus, to which I have referred. The note is as follows: + +"Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, seq., +where I have attempted to prove the spuriousness of the document called +the Charter of William I., printed in the ancient 'Laws' ed. Thorpe, p. +211. The way in which the regulation of the Conqueror here referred +to has been misunderstood and misused is curious. Lambarde, in the +'Archaionomia,' p. 170, printed the false charter in which this genuine +article is incorporated as an appendiz to the French version of the +Conqueror's laws, numbering the clauses 51 to 67; from Lambarde, +the whole thing was transferred by Wilkins into his collection of +ANGLO-SAXON laws. Blackstone's 'Commentary,' ii. 49, suggested that +perhaps the very law (which introduced feudal tenures) thus made at the +Council of Salisbury is that which is still extant and couched in these +remarkable words, i. e., the injunction in question referred to by +Wilkins, p. 228 Ellis, in the introduction to 'Doomsday,' i. 16, +quotes Blackstone, but adds a reference to Wilkins without verifying +Blackstone's quotation from his collection of laws, substituting for +that work the Concilia, in which the law does not occur. Many modern +writers have followed him in referring the enactment of the article +to the Council of Salisbury. It is well to give here the text of both +passages; that in the laws runs thus: 'Statuimus etiam ut omnis liber +homo foedere et sacremento affirmet, quod intra et extra Angliam +Willelmo regi fideles esse volunt, terras et honorem illius omni +fidelitate eum eo servare et ante eum contra inimicos defendere' (Select +Charters, p. 80). the homage done at Salisbury is described by Florence +thus: 'Nec multo post mandavit ut Archiepiscopi episcopi, abbates, +comitas et barones et vicecomitas cum suis militibus die Kalendarum +Augustarem sibi occurent Saresberiae quo cum venissent milites eorem +sibi fidelitatem contra omnes homines jurare coegit.' The 'Chronicle' +is a little more full: 'Thaee him comon to his witan and ealle tha +Landsittende men the ahtes waeron ofer eall Engleland waeron thaes +mannes men the hi waeron and ealle hi bugon to him and waeron his men, +and him hold athas sworon thaet he woldon ongean ealle other men him +holde beon.'" + +Mr. Stubbs had, in degree, adopted the view at which I had arrived, that +the law or charter of William I. was an injunction to enforce the oath +of allegiance, previously ordered by the laws of Edward the Confessor, +to be taken by all FREEMEN, and that it did not relate to vassals, or +alter the existing feudalism. + +As the subject possesses considerable interest for the general reader +as well as the learned historian, I think it well to place the two +authorities side by side, that the text may be compared: + +LII. William I., as given by Eadments. "De fide et obsequio erga Regnum. + +"Statuimus etiam ut omnes LIBERI HOMINES foedere et sacramento affirment +quod intra et extra univereum regnum Anglise (quod olim vocabatur regnum +Britanniae) Wilhielmo suo domino fideles ease volunt, terras et honores +ilius fidelitate ubique servare cum eo et contra inimicos et alienigenas +defendere." + +Charter from Textus Roffensis, given by Mr. Stubbs. + +"Statuimus etiam ut omnis liber homo feodere et sacramento affirmet, +quod intra et extra Angliam. Willelmo regi fideles ease volunt, terras +et honorem illius omni fidelitate cum eo servare et ante eum contra +inimicos defendere." + +I think the documents I have quoted show that Sir Martin Wright, Sir +William Blackstone, and Messrs. Hallam and FREEMAN, labored under a +mistake in supposing that William had introduced or imposed a new feudal +law, or that the vassals of a lord swore allegiance to the king. The +introduction to the laws of William I. shows that it was not a new +enactment, or a Norman custom introduced into England, and the law +itself proves that it relates to FREEMEN, and not to vassals. + +The misapprehension of these authors may have arisen in this way: +William I. had two distinct sets of subjects. The NORMANS, who had +taken the oath of allegiance on obtaining investiture, and whose +retinue included vassals; and the ANGLO-SAXONS, among whom vassalage was +unknown, who were FREEMAN (LIBERI HOMINES) as distinguished from serfs. +The former comprised those in possesion of Odhal (noble) land, whether +held from the crown or its tenants. It was quite unnecessary to convoke +the Normans and their vassals, while the assemblage of the Saxons--OMNES +LIBERI HOMINES--was not only to conformity with the laws of Edward +the Confessor, but was specially needful when a foreigner had possesed +himself of the throne. + +I have perhaps dwelt to long upon this point, but the error to which I +have referred has been adopted as if it was an unquestioned fact, and +has passed into our school-books and become part of the education given +to the young, and therefore it required some examination. + +I believe that a very large portion of the land in England did not +change hands at that period, nor was the position of either SERFS +or VILLEINS changed. The great alteration lay in the increase in the +quantity of BOC-LAND. Much of the FOLC-LAND was forfeited and seized +upon, and as the king claimed the right to give it away, it was called +TERRA REGIS. The charter granted by King William to Alan Fergent, Duke +of Bretagne, of the lands and towns, and the rest of the inheritance of +Edwin, Earl of Yorkshire, runs thus: + +"Ego Guilielmus cognomine Bastardus, Rex Anglise do et concede tibi +nepoti meo Alano Brittanias Comiti et hseredibus tuis imperpetuum omnes +villas et terras qua nuper fuerent Comitis Edwini in Eborashina cum +feodis militise et aliis libertatibus et consuetudinibus ita libere et +honorifice sicut idem Edwinus eadem tenuit. + +"Data obsidione coram civitate Eboraci." + +This charter does not create a different title, but gives the lands as +held by the former possessor. The monarch assumed the function of the +fole-gemot, but the principle remained--the feudee only became tenant +for life. Each estate reverted to the Crown on the death of him who held +it; but, previous to acquiring possession, the new tenant had to cease +to be his own "man," and became the "man" of his superior. This act was +called "homage," and was followed by "investiture." In A.D. 1175, Prince +Henry refused to trust himself with his father till his homage had been +renewed and accepted, for it bound the superior to protect the inferior. +The process is thus described by De Lolme (chap, ii., sec. 1): + +"On the death of the ancestor, lands holden by 'knight's service' and +by 'grand sergeantcy' were, upon inquisition finding the tenure and +the death of the ancestor, seized into the king's hands. If the heir +appeared by the inquisition to be within the age of twenty-one +years, the King retained the lands till the heir attained the age of +twenty-one, for his own profit, maintaining and educating the heir +according to his rank. If the heir appeared by the inquisition to have +attained twenty-one, he was entitled to demand livery of the lands by +the king's officers on paying a relief and doing fealty and homage. The +minor heir attaining twenty-one, and proving his age, was entitled to +livery of his lands, on doing fealty and homage, without paying any +relief." + +The idea involved is, that the lands Were HELD, and NOT OWNED, and that +the proprietary right lay in the nation, as represented by the king. +If we adopt the poetic idea of the Brehon code, that "land is perpetual +man," then HOMAGE for land was not a degrading institution. But it is +repugnant to our ideas to think that any man can, on any ground, or for +any consideration, part with his manhood, and become by homage the "man" +of another. + +The Norman chieftains claimed to be peers of the monarch, and to sit in +the councils of the nation, as barons-by-tenure and not by patent. +This was a decided innovation upon the usages of the Anglo-Saxons, and +ultimately converted the Parliament, the FOLC-GEMOT, into two branches. +Those who accompanied the king stood in the same position as the +companions of Romulus, they were the PATRICIANS; those subsequently +called to the councils of the sovereign by patent corresponded with +the Roman NOBILES. No such patents were issued by any of the Norman +monarchs. But the insolence of the Norman nobles led to the attempt made +by the successors of the Conqueror to revive the Saxon earldoms as a +counterpoise. The weakness of Stephen enabled the greater fudges to +fortify their castles, and they set up claims against the Crown, which +aggravated the discord that arose in subsequent reigns. + +The "Saxon Chronicles," p. 238, thus describes the oppressions of the +nobles, and the state of England in the reign of Stephen: + +"They grievously oppressed the poor people with building castles, and +when they were built, filled them with wicked men, or rather devils, who +seized both men and women who they imagined had any money, threw them +into prison, and put them to more cruel tortures than the martyrs ever +endured; they suffocated some in mud, and suspended others by the feet, +or the head, or the thumbs, kindling fires below them. They squeezed the +heads of some with knotted cords till they pierced their brains, while +they threw others into dungeons swarming with serpents, snakes, and +toads." + +The nation was mapped out, and the owners' names inscribed in the +Doomsday Book. There were no unoccupied lands, and had the possessors +been loyal and prudent, the sovereign would have had no lands, save his +own private domains, to give away, nor would the industrious have been +able to become tenants-in-fee. The alterations which have taken place in +the possession of land since the composition of the Book of Doom, have +been owing to the disloyalty or extravagance of the descendants of those +then found in possession. + +Notwithstanding the vast loss of life in the contests following upon the +invasion, the population of England increased from 2,150,000 in 1066, +when William landed, to 3,350,000 in 1152, when the great-grandson of +the Conqueror ascended the throne, and the first of the Plantagenets +ruled in England. + + + + + +V. THE PLANTAGENETS. + + +Whatever doubts may exist as to the influence of the Norman Conquest +upon the mass of the people--the FREEMEN, the ceorls, and the +serfs--there can be no doubt that its effect upon the higher classes was +very great. It added to the existing FEUDALISM--the system of Baronage, +with its concomitants of castellated residences filled with armed men. +It led to frequent contests between neighboring lords, in which the +liberty and rights of the FREEMEN were imperilled. It also eventuated +in the formation of a distinct order-the peerage--and for a time the +constitutional influence of the assembled people, the FOLC-GEMOT, was +overborne. + +The principal Norman chieftains were barons in their own country, and +they retained that position in England, but their holdings in both were +feudal, not hereditary. When the Crown, originally elective, became +hereditary, the barons sought to have their possessions governed by the +same rule, to remove them from the class of TERRAREGIS (FOLC-LAND), and +to convert them into chartered land. Being gifts from the monarch, he +had the right to direct the descent, and all charters which gave land +to a man and his heirs, made each of them only a tenant for life; the +possessor was bound to hand over the estate undivided to the heir, and +he could neither give, sell, nor bequeath it. The land was BENEFICIA, +just as appointments in the Church, and reverted, as they do, to the +patron to be re-granted. They were held upon military service, and the +major barons, adopting the Saxon title Earl, claimed to be PEERS of +the monarch, and were called to the councils of the state as +barons-by-tenure. In reply to a QUO WARRANTO, issued to the Earl of +Surrey, in the reign of Edward I., he asserted that his ancestors had +assisted William in gaining England, and were equally entitled to +a share of the spoils. "It was," said he, "by their swords that his +ancestors had obtained their lands, and that by his he would maintain +his rights." The same monarch required the Earls of Hereford and Norfolk +to go over with his army to Guienne, and they replied, "The tenure of +our lands does not require us to do so, unless the king went in person." +The king insisted; the earls were firm. "By God, sir Earl," said Edward +to Hereford, "you shall go or hang." "By God, sir King," replied the +earl, "I will neither go nor hang." The king submitted and forgave his +warmth. + +The struggle between the nobles and the Crown commenced, and was +continued, under varying circumstances. Each of the barons had a large +retinue of armed men under his own command, and the Crown was liable to +be overborne by a union of ambitious nobles. At one time the monarch had +to face them at Runnymede and yield to their demands; at another he was +able to restrain them with a strong hand. The Church and the barons, +when acting in union, proved too strong for the sovereign, and he had to +secure the alliance of one of these parties to defeat the views of the +other. The barons abused their power over the FREEMEN, and sought to +establish the rule "that every man must have a lord," thus reducing +them to a state of vassalage. King John separated the barons into two +classes--major and minor; the former should have at least thirteen +knights' fees and a third part; the latter remained country gentlemen. +The 20th Henry III., cap. 2 and 4, was passed to secure the rights of +FREEMEN, who were disturbed by the great lords, and gave them an appeal +to the king's courts of assize. + +Bracton, an eminent lawyer who wrote in the time of Henry III., says: + +"The king hath superiors--viz., God and the law by which he is made +king; also his court--viz., his earls and barons. Earls are the king's +associates, and he that hath an associate hath a master; and therefore, +if the king be unbridled, or (which is all one) without law, they ought +to bridle him, unless they will be unbridled as the king, and then the +commons may cry, Lord Jesus, pity us," etc. + +An eminent lawyer, time of Edward I., writes: + +"Although the king ought to have no equal in the land, yet because the +king and his commissioners can be both judge and party, the king ought +by right to have companions, to hear and determine in Parliament all +writs and plaints of wrongs done by the king, the queen, or their +children." + +These views found expression in the coronation oath. Edward II. was +forced to swear: + +"Will you grant and keep, and by your oath confirm to the people of +England the laws and customs to them, granted by the ancient kings of +England, your righteous and godly predecessors; and especially to the +clergy and people, by the glorious King St. Edward, your predecessor?" + +The king's answer--"I do them grant and promise." + +"Do you grant to hold and keep the laws and rightful customs which the +commonalty of your realm shall have chosen, and to maintain and enforce +them to the honor of God after your power?" + +The king's answer--"I this do grant and promise." + +I shall not dwell upon the event most frequently quoted with reference +to the era of the Plantagenets--I mean King John's "Magna Charta." It +was more social than territorial, and tended to limit the power of the +Crown, and to increase that of the barons. The Plantagenets had not +begun to call Commons to the House of Lords. The issue of writs was +confined to those who were barons-by-tenure, the PATRICIANS of the +Norman period. The creation of NOBLES was the invention of a later age. +The baron feasted in his hall, while the slave grovelled in his cabin. +Bracton, the famous lawyer of the time of Henry III., says: "All the +goods a slave acquired belonged to his master, who could take them from +him whenever he pleased," therefore a man could not purchase his own +freedom. "In the same year, 1283," says the Annals of Dunstable, "we +sold our slave by birth, William Fyke, and all his family, and received +one mark from the buyer." The only hope for the slave was, to try and +get into one of the walled towns, when he became free. Until the Wars of +the Roses, these serfs were greatly harassed by their owners. + +In the reign of Edward I., efforts were made to prevent the alienation +of land by those who received it from the Norman sovereigns. The statute +of mortmain was passed to restrain the giving of lands to the Church, +the statute DE DONIS to prevent alienation to laymen. The former +declares: + +"That whereas religious men had entered into the fees of other men, +without license and will of the chief lord, and sometimes appropriating +and buying, and sometimes receiving them of gift of others, whereby the +services that are due of such fee, and which, in the beginning, were +provided for the defence of the realm, are wrongfully withdrawn, and the +chief lord do lose the escheats of the same (the primer seizin on +each life that dropped); it therefore enacts: That any such lands were +forfeited to the lord of the fee; and if he did not take it within +twelve months, it should be forfeited to the king, who shall enfeoff +other therein by certain services to be done for us for the defence of +the realm." + +Another act, the 6th Edward I., cap. 3, provides: + +"That alienation by the tenant in courtesy was void, and the heir was +entitled to succeed to his mother's property, notwithstanding the act of +his father." + +The 13th Edward I., cap. 41, enacts: + +"That if the abbot, priors, and keepers of hospitals, and other +religious houses, aliened their land they should be seized upon by the +king." + +The 13th Edward I., cap. 1, DE DONIS conditionalitiis, provided: + +"That tenements given to a man, and the heirs of his body, should, at +all events, go to the issue, if there were any; or, if there were none, +should revert to the donor." + +But while the fiefs of the Crown were forbidden to alien their lands, +the FREEMEN, whose lands were Odhal (noble) and of Saxon descent, the +inheritance of which was guaranteed to them by 55 William I. (ANTE, p. +13), were empowered to sell their estates by the statute called QUIA +EMPTORES (6 Edward I.). It enacts: + +"That from henceforth it shall be lawful to every FREEMEN to sell, at +his own pleasure, his lands and tenements, or part of them: so that the +feoffee shall hold the same lands and tenements of the chief lord of the +fee by such customs as his feoffee held before." + +The scope of these laws was altered in the reign of Edward III. That +monarch, in view of his intended invasion of France, secured the +adhesion of the landowners, by giving them power to raise money upon and +alien their estates. The permission was as follows, 1 Edward III., cap. +12: + +"Whereas divers people of the realm complain themselves to be grieved +because that lands and tenements which be holden of the king in chief, +and aliened without license, have been seized into the king's hand, and +holden as forfeit: (2.) The king shall not hold them as forfeit in such +case, but will and grant from henceforth of such lands and tenements +so aliened, there shall be reasonable fine taken in chancery by due +process." + +1 Edward III., cap. 13: + +"Whereas divers have complained that they be grieved by reason of +purchasing of lands and tenements, which have been holden of the king's +progenitors that now is, as of honors; and the same lands have been +taken into the king's hands, as though they had been holden in chief of +the king as of his crown: (2.) The king will that from henceforth no man +be grieved by any such purchase." + +De Lolme, chap. iii., sec. 3, remarks on these laws that they took from +the king all power of preventing alienation or of purchase. They left +him the reversionary right on the failure of heirs. + +These changes in the relative power of the sovereign and the nobles took +place to enable Edward to enter upon the conquest of France; but that +monarch, conferred a power upon the barons, which was used to the +detriment of his descendants, and led to the dethronement of the +Plantagenets. + +The line of demarcation between the two sets of titles, those derived +through the ANGLO-SAXON laws and those derived through the grants of the +Norman sovereigns, was gradually being effaced. The people looked back +to the laws of Edward the Confessor, and forced them upon Edward II. +But after passing the laws which prevented nobles from selling, and +empowering FREEMEN to do so, Edward III. found it needful to assert his +claims to the entire land of England, and enacted in the twenty-fourth +year of his reign: + +"That the king is the universal lord and original proprietor of all land +in his kingdom; that no man doth or can possess, any part of it but what +has mediately or immediately been derived as a gift from him to be held +on feodal service." + +Those who obtained gifts of land, only held or had the use of them; the +ownership rested in the Crown. Feodal service, the maintenance of armed +men, and the bringing them into the field, was the rent paid. + +The wealth which came into England after the conquest of France +influenced all classes, but none more than the family of the king. His +own example seems to have affected his descendants. The invasion of +France and the captivity of its king reappear in the invasion of England +by Henry IV., and the capture and dethronement of Richard II. The +prosperity of England during the reign of Edward had passed away in that +of his grandson. Very great distress pervaded the land, and it led to +efforts to get rid of villeinage. The 1st Richard II. recites: + +"That grievous complaints had been made to the Lords and Commons, that +villeins and land tenants daily withdraw into cities and towns, and a +special commission was appointed to hear the case, and decide thereon." + +The complaint was renewed, and appears in Act 9 Richard II., cap. 2: + +"Whereas divers villeins and serfs, as well of the great Lords as of +other people, as well spiritual as temporal, do fly within the cities, +towns, and places entfranched, as the city of London, and other like, +and do feign divers suits against their Lords, to the intent to make +them free by the answer of the Lords, it is accorded and assented that +the Lords and others shall not be forebound of their villeins, because +of the answer of the Lords." + +Serfdom or slavery may have existed previous to the ANGLO-SAXON +invasion, but I am disposed to think that the Saxon, the Jutes, and the +Angles reduced the inhabitants of the lands which they conquered, into +serfdom. The history of that period shows that men, women, and children +were constantly sold, and that there were established markets. One at +Bristol, which was frequented by Irish buyers, was put down, owing to +the remonstrance of the Bishop. After the Norman invasion the name of +Villein, a person attached to the villa, was given to the serfs. The +village was their residence. Occasional instances of enfranchisement +took place; the word signified being made free, and at that time every +FREEMAN was entitled to a vote. The word enfranchise has latterly come +to bear a different meaning, and to apply solely to the possession of a +vote, but it originally meant the elevation of a serf into the condition +of a FREEMAN. The act of enfranchisement was a public ceremony usually +performed at the church door. The last act of ownership performed by the +master was the piercing of the right ear with an awl. Many serfs fled +into the towns, where they were enfranchised and became FREEMEN. + +The disaffection of the common people increased; they were borne down +with oppression. They struggled against their masters, and tried to +secure their personal liberty, and the freedom of their land. The +population rose in masses in the reign of Richard II., and demanded-- + +1st. The total abolition of slavery for themselves and their children +forever; + +2d. The reduction of the rent of good land to 4d. per acre; + +3d. The right of buying and selling, like other men, in markets and +fairs; + +4th. The pardon of all offences. + +The monarch acted upon insidious advice; he spoke them fair at first, to +gain time, but did not fulfil his promises. Ultimately the people gained +part of their demands. To limit or defeat them, an act was passed, +fixing the wages of laborers to 4d. per day, with meat and drink, or 6d. +per day, without meat and drink, and others in proportion; but with the +proviso, that if any one refused to serve or labor on these terms, every +justice was at liberty to send him to jail, there to remain until he +gave security to serve and labor as by law required. A subsequent act +prevents their being employed by the week, or paid for holidays. + +Previous to this period, the major barons and great lords tilled their +land by serfs, and had very large flocks and herds of cattle. On the +death of the Bishop of Winchester, 1367, his executors delivered to +Bishop Wykeham, his successor in the see, the following: 127 draught +horses, 1556 head of cattle, 3876 wedders, 4777 ewes, and 3541 lambs. +Tillage was neglected; and in 1314 there was a severe dearth; wheat sold +at a price equal to L30 per quarter, the brewing of ale was discontinued +by proclamation, in order "to prevent those of middle rank from +perishing for want of food." + +The dissensions among the descendants of Edward III. as to the right +to the Crown aided the nobles in their efforts to make their estates +hereditary, and the civil wars which afflicted the nation tended to +promote that object. Kings were crowned and discrowned at the will of +the nobles, who compelled the FREEMEN to part with their small estates. +The oligarchy dictated to the Crown, and oppressed and kept down +the FREEMEN. The nobles allied themselves with the serfs, who were +manumitted that they might serve as soldiers in the conflicting armies. + +From the Conquest to the time of Richard II., only barons-by-tenure, the +descendants of the companions of the Conqueror, were invited by writ to +Parliament. That monarch made an innovation, and invited others who were +not barons-by-tenure. The first dukedom was created the 11th of Edward +III., and the first viscount the 18th Henry VI. + +Edward IV. seized upon the lands granted by former kings, and gave them +to his own followers, and thus created a feeling of uneasiness in the +minds of the nobility, and paved the way for the events which were +accomplished by a succeeding dynasty. The decision in the Taltarum case +opened the question of succession; and Edward's efforts to put down +retainers was the precursor of the Tudor policy. + +We have a picture of the state of society in the reign of Edward IV. +in the Paston Memoirs, written by Margaret Paston. Her husband, John +Paston, was heir to Sir John Fastolf. He was bound by the will to +establish in Caister Castle, Fastolf s own mansion, a college of +religious men to pray for his benefactor's soul. But in those days might +was right, and the Duke of Norfolk, fancying that he should like the +house for himself, quietly took possession of it. At that time, Edward +was just seated on the throne, and Edward had just been reported to +Paston to have said in reference to another suit, that + +"He would be your good lord therein as he would to the poorest man in +England. He would hold with you in your right; and as for favor, he will +not be understood that he shall show favor more to one man to another, +not to one in England." + +This was a true expression of the king's intentions. But either he +was changeable in his moods, or during these early years he was hardly +settled enough on the throne always to be able to carry out his wishes. +This time, however, in some way or another, the great duke was reduced +to submission, and Caister was restored to Paston. + +In 1465 a new claimant appeared; and claimants, though as troublesome +in the fifteenth as the nineteenth century, proceeded in a different +fashion. This time it was the Duke of Suffolk, who asserted a right to +the manor of Drayton in his own name, and who had bought up the assumed +rights of another person to the manor of Hellesdon. John Paston was +away, and his wife had to bear the brunt. An attempt to levy rent +at Drayton was followed by a threat from the duke's men, that if her +servants "ventured to take any further distresses at Drayton, even if +it were but of the value of a pin, they would take the value of an ox in +Hellesdon." + +Paston and the duke alike professed to be under the law. But each was +anxious to retain that possession which in those days seems really to +have been nine points of the law. The duke got hold of Drayton, while +Hellesdon was held for Paston. One day Paston's men made a raid upon +Drayton, and carried off seventy-seven head of cattle. Another day the +duke's bailiff came to Hellesdon with 300 men to see if the place +were assailable. Two servants of Paston, attempting to keep a court at +Drayton in their master's name, were carried off by force. At last the +duke mustered his retainers and marched against Hellesdon. The garrison, +too weak to resist, at once surrendered. + +"The duke's men took possession, and set John Paston's own tenants to +work, very much against their wills, to destroy the mansion and break +down the walls of the lodge, while they themselves ransacked the church, +turned out the parson, and spoiled the images. They also pillaged very +completely every house in the village. As for John Paston's own place, +they stripped it completely bare; and whatever there was of lead, +brass, pewter, iron, doors or gates, or other things that they could not +conveniently carry off, they hacked and hewed them to pieces. The duke +rode through Hellesdon to Drayton the following day, while his men were +still busy completing the wreck of destruction by the demolition of the +lodge. The wreck of the building, with the rents they made in its walls, +is visible even now" (Introd. xxxv.). + +The meaning of all this is evident. We have before us a state of society +in which the anarchical element is predominant. But it is not pure +anarchy. The nobles were determined to reduce the middle classes to +vassalage. + +The reign of the Plantagenets witnessed the elevation of the nobility. +The descendants of the Norman barons menaced, and sometimes proved too +powerful for the Crown. In such reigns as those of Edward I., Edward +III., and Henry VI., the barons triumphed. The power wielded by the +first Edward fell from the feeble grasp of his son and successor. The +beneficent rule of Edward III. was followed by the anarchy of Richard +II. Success led to excess. The triumphant party thinned the ranks of its +opponents, and in turn experienced the same fate. The fierce struggle +of the Red and White Roses weakened each. Guy, Earl of Warwick, "the +king-maker," sank overpowered on the field of Tewkesbury, and with +him perished many of the most powerful of the nobles. The jealousy +of Richard III. swept away his own friends, and the bloody contest on +Bosworth field destroyed the flower of the nobility. The sun of the +Plantagenets went down, leaving the country weak and impoverished, from +a contest in which the barons sought to establish their own power, to +the detriment alike of the Crown and the FREEMEN. The latter might have +exclaimed: + +"Till half a patriot, half a coward, grown, We fly from meaner tyrants +to the throne." + +The long contest terminated in the defeat alike of the Crown and the +nobles, but the nation suffered severely from the struggle. + +The rule of this family proved fatal to the interest of a most important +class, whose rights were jealously guarded by the Normans. The Liberi +Homines, the FREEMEN, who were Odhal occupiers, holding in capite from +the sovereign, nearly disappeared in the Wars of the Roses. Monarchs who +owed their crown to the favor of the nobles were too weak to uphold +the rights of those who held directly from the Crown, and who, in their +isolation, were almost powerless. + +The term FREEMAN, originally one of the noblest in the land, disappeared +in relation to urban tenures, and was applied solely to the personal +rights of civic burghers; instead thereof arose the term FREEHOLDER from +FREE HOLD, which was originally a grant free from all rent, and only +burdened with military service. The term was subsequently applied to +land held for leases for lives as contradistinguished from leases for +years, the latter being deemed base tenures, and insufficient to qualify +a man to vote; the theory being that no man was free whose tenure could +be disturbed during his life. Though the Liberi Homines or FREEMEN were, +as a class, overborne in this struggle, and reduced to vassalage, yet +their descendants were able, under the leadership of Cromwell, to regain +some of the rights and influence of which they had been despoiled under +the Plantagenets. + +Fortescue, Lord Chief-Justice to Henry VI., thus describes the condition +of the English people: + +"They drunk no water, unless it be that some for devotion, and upon a +rule of penance, do abstain from other drink. They eat plentifully +of all kinds of flesh and fish. They wear woollen cloth in all their +apparel. They have abundance of bed covering in their houses, and +all other woollen stuff. They have great store of all implements of +household. They are plentifully furnished with all instruments of +husbandry, and all other things that are requisite to the accomplishment +of a great and wealthy life, according to their estates and degrees." + +This flattering picture is not supported by the existing disaffection +and the repeated applications for redress from the serfs and the smaller +farmers, and the simple fact that the population had increased under +the Normans--a period of 88 years--from 2,150,000 to 3,350,000, while +under the Plantagenets--a period of 300 years--it only increased to +4,000,000, the addition to the population in that period being only +650,000. The average increase in the former period was nearly 14,000 per +annum, while in the latter it did not much exceed 2000 per annum. This +goes far to prove the evil from civil wars, and the oppression of the +oligarchy. + + + + + +VI. THE TUDORS + + +The protracted struggle of the Plantagenets left the nation in a state +of exhaustion. The nobles had absorbed the lands of the FREEMEN, and +had thus broken the backbone of society. They had then entered upon a +contest with the Crown to increase their own power; and to effect their +selfish objects, setup puppets, and ranged under conflicting banners, +but the Nemesis followed. The Wars of the Roses destroyed their own +power, and weakened their influence, by sweeping away the heads of the +principal families. The ambition of the nobles failed of its object, +when "the last of the barons" lay gory in his blood on the field of +Tewkesbury. The wars were, however, productive of one national benefit, +in virtually ending the state of serfdom to which the aborigines were +reduced by the Scandinavian invasion. The exhaustion of the nation +prepared the way to changes of a most radical character, and the reigns +of the Tudors are characterized by greater innovations and more striking +alterations than even those which followed the accession of the Normans. + +Henry of Richmond came out of the field of Bostworth a vistor, and +ascended the throne of a nation whose leading nobles had been swept +away. The sword had vied with the axe. Henry VII. was prudent and +cunning; and in the absence of any preponderating oligarchical +influence, planted the heel of the sovereign upon the necks of the +nobles. He succeeded where the Plantagenets had failed. His accession +became the advent of a series of measures which altered most materially +the system of landholding. The Wars of the Roses showed that the power +of the nobles was too great for the comfort of the monarch. The decision +in Taltarum's case, in the reign of Edward IV., affected the entire +system of entail. Land, partly freed from restrictions, passed into +other hands. But Henry went further. He destroyed their physical +influence by ridigly putting down retainer; and in one of his tours, +while partaking of the hospitality of the Earl of Oxford, he fined him +L15,000 for having greeted him with 5000 of his tenants in livery. The +rigid enforcement of the laws passed against retainers in former reigns, +but now made more penal, strengthened the king and reduced the power of +the nobles. Their estates were relieved of a most onerous charge, and +the lands freed from the burden of supporting the army of the state. + +Henry VII. had thus a large fund to give away; the rent of the land +granted in knights' service virtually consisted of two separate +funds--one part went to the feudee, as officer or commmandant, the other +to the soldiery or vassals. The latter part belonged to the state. Had +Henry applied it to the reestablishment of the class of FREEMEN +(LIBERI HOMINES), as was recently done by the Emperor of Russia when he +abolished serfdom, he would have created a power on which the Crown and +the constitution could rely. This might have been done by converting the +holdings of the men-at-arms into allodial estates, held direct from +the Crown. Such an arrangement would have left the income of the feudee +unimpaired, as it would only have applied the fund that had been paid +to the men-at-arms to this purpose; and by creating out of that land +a number of small estates held direct from the Crown, the misery that +arose from the eviction and destruction of a most meritorious class, +would have been avoided. Vagrancy, with its great evils, would have been +prevented, and the passing of the Poor laws would have been unnecessary. +Unfortunately Henry and his counsellors did not appreciate the +consequence of the suppression of retainers and liveries. By the course +he adopted to secure the influence of the Crown, he compensated the +nobles, but destroyed the agricultural middle class. + +This change had an important and, in some respects, a most injurious +effect upon the condition of the nation, and led to enactments of a very +extraordinary character, which I must submit in detail, inasmuch as I +prefer giving the ipsissima verba of the statute-book to any statement +of my own. To make the laws intelligible, I would remind you that the +successful efforts of the nobles had, during the three centuries of +Plantagenet rule, nearly obliterated the LIBERI HOMINES (whose rights +the Norman conqueror had sedulously guarded), and had reduced them to a +state of vassalage. They held the lands of their lord at his will, and +paid their rent by military service. When retainers were put down, +and rent or knights' service was no longer paid with armed men, their +occupation was gone. They were unfit for the mere routine of husbandry, +and unprovided with funds for working their farms. The policy of the +nobles was changed. It was no longer their object to maintain small +farmsteads, each supplying its quota of armed men to the retinue of the +lord; and it was their interest to obtain money rents. Then commenced a +struggle of the most fearful character. The nobles cleared their lands, +pulled down the houses, and displaced the people. Vagrancy, on a +most unparalleled scale, took place. Henry VII., to check this +cruel, unexpected, and harsh outcome of his own policy, resorted to +legislation, which proved nearly ineffectual. As early as the fourth +year of his reign these efforts commenced with an enactment (cap. 19) +for keeping up houses and encouraging husbandry; it is very quaint, and +is as follows: + +"The King, our Sovereign Lord, having singular pleasure above all things +to avoid such enormities and mischiefs as be hurtful and prejudicial +to the commonwealth of this his land and his subjects of the same, +remembereth that, among other things, great inconvenience daily doth +increase by dissolution, and pulling down, and wilful waste of houses +and towns within this his realm, and laying to pasture lands, which +continually have been in tilth, WHEREBY IDLENESS, THE GROUND AND +BEGINNING OF ALL MISCHIEF, daily do increase; for where, in some towns +200 persons were occupied, and lived by those lawful labors, now there +be occupied two or three herdsmen, and the residue full of idleness. +The husbandry, which is one of the greatest commodities of the realm, is +greatly decayed. Churches destroyed, the service of God withdrawn, the +bodies there buried not prayed for, the patrons and curates wronged, the +defence of the land against outward enemies feebled and impaired, to the +great displeasure of God, the subversion of the policy and good rule of +this land, if remedy be not hastily therefor purveyed: Wherefore, +the King, our Sovereign Lord, by the assent and advice, etc., etc., +ordereth, enacteth, and establisheth that no person, what estate, +degree, or condition he be, that hath any house or houses, that at +any time within the past three years hath been, or that now is, or +heretofore shall be, let to farm with twenty acres of land at least, or +more, laying in tillage or husbandry; that the owners of any such house +shall be bound to keep, sustain, and maintain houses and buildings, upon +the said grounds and land, convenient and necessary for maintaining and +upholding said tillage and husbandry; and if any such owner or owners of +house or house and land take, keep, and occupy any such house or house +and land in his or their own hands, that the owner of the said authority +be bound in likewise to maintain houses and buildings upon the said +ground and land, convenient and necessary for maintaining and upholding +the said tillage and husbandry. On their default, the king, or the other +lord of the fee, shall receive half of the profits, and apply the same +in repairing the houses; but shall not gain the freehold thereby." + +This act was preceded by one with reference to the Isle of Wight, 4 +Henry VII., cap. 16, passed the same session, which recites that it is +so near France that it is desirable to keep it in a state of defence. It +provides that no person shall have more than one farm, and enacts: + +"For remedy, it is ordered and enacted that no manner of person, of what +estate, degree, or condition soever, shall take any farm more than one, +whereof the yearly rent shall not exceed ten marks; and if any several +leases afore this time have been made to any person or persons of divers +and sundry farmholds whereof the yearly value shall exceed that sum, +then the said person or persons shall choose one farm, hold at his +pleasure, and the remnant of the leases shall be void." + +Mr. Froude remarks (History, p. 26), "An act, tyrannical in form, was +singularly justified by its consequences. The farm-houses were rebuilt, +the land reploughed, the island repeopled; and in 1546, when the French +army of 60,000 men attempted to effect a landing at St. Helens, +they were defeated and driven back by the militia, and a few levies +transported from Hampshire and the surrounding counties." + +Lord Bacon, in his "History of the Reign of Henry VII., says: + +"Enclosures, at that time, began to be more frequent, whereby arable +land (which could not be manured without people and families) was turned +into pasture, which was easily rid by a few herdsmen; and tenancies for +years, lives, and at will (whereupon much of the yeomanry lived) were +turned into demesnes. This bred a decay of people and (by consequence) a +decay of towns, churches, tithes, and the like. The king, likewise, knew +full well, and in nowise forgot, that there ensued withal upon this a +decay and diminution of subsidies and taxes; for the more gentlemen, +ever the lower books of subsidies. In remedying of this inconvenience, +the king's wisdom was admirable, and the parliaments at that time. +Enclosures they would not forbid, for that had been to forbid the +improvement of the patrimony of the kingdom; nor tillage they would not +compel, for that was to strive with nature and utility; but they took a +course to take away depopulating enclosures and depopulating pasturage, +and yet not by that name, or by any imperious express prohibition, but +by consequence. The ordinance was, that all houses of husbandry, that +were used with twenty acres of ground and upward, should be maintained +and kept up for ever, together with a competent proportion of land to be +used and occupied with them; and in nowise to be severed from them, +as by another statute made afterward in his successor's time, was more +fully declared: this, upon forfeiture to be taken, not by way of popular +action, but by seizure of the land itself, by the king and lords of the +fee, as to half the profits, till the houses and land were restored. By +this means the houses being kept up, did of necessity enforce a dweller; +and the proportion of the land for occupation being kept up, did of +necessity enforce that dweller not to be a beggar or cottager, but a +man of some substance, that might keep hinds and servants, and set the +plough a-going. This did wonderfully concern the might and mannerhood +of the kingdom, to have farms, as it were, of a standard sufficient +to maintain an able body out of penury, and did, in effect, amortise a +great part of the lands of the kingdom unto the hold and occupation +of the yeomanry or middle people, of a condition between gentlemen and +cottagers or peasants. Now, how much this did advance the military +power of the kingdom, is apparent by the true principles of war, and the +examples of other kingdoms. For it hath been held by the general opinion +of men of best judgment in the wars (howsoever some few have varied, +and that it may receive some distinction of case), that the principal +strength of an army consisteth in the infantry or foot. And to make good +infantry, it requireth men bred, not in a servile or indigent fashion, +but in some free and plentiful manner. Therefore, if a state run most to +noblemen and gentlemen, and that the husbandman and ploughman be but +as their workfolks and laborers, or else mere cottagers (which are but +housed beggars), you may have a good cavalry, but never good stable +bands of foot; like to coppice woods, that if you leave in them standing +too thick, they will run to bushes and briars, and have little clean +underwood. And this is to be seen in France and Italy, and some other +parts abroad, where in effect all is nobles or peasantry. I speak of +people out of towns, and no middle people; and therefore no good forces +of foot: insomuch as they are enforced to employ mercenary bands of +Switzers and the like for their battalions of foot, whereby also it +comes to pass, that those nations have much people and few soldiers. +Whereas the king saw that contrariwise it would follow, that England, +though much less in territory, yet should have infinitely more soldiers +of their native forces than those other nations have. Thus did the king +secretly sow Hydra's teeth; whereupon (according to the poet's fiction) +should rise up armed men for the service of this kingdom." + +The enactment above quoted was followed by others in that reign of a +similar character, but it would appear they were not successful. The +evil grew apace. Houses were pulled down, farms went out of tillage. +The people, evicted from their farms, and having neither occupation nor +means of living, were idle, and suffering. Succeeding sovereigns strove +also to check this disorder? and statute after statute was passed. Among +them are the 7th Henry VIII., cap. 1. It recites: + +"That great inconveniency did daily increase by dissolution, pulling +down, and destruction of houses, and laying to pasture, lands which +customarily had been manured and occupied with tillage and husbandry, +whereby idleness doth increase; for where, in some town-lands, hundreds +of persons and their ancestors, time out of mind, were daily occupied +with sowing of corn and graynes, breeding of cattle, and other increase +of husbandry, that now the said persons and their progeny are disunited +and decreased. It further recites the evil consequences resulting +from this state of things, and provides that all these buildings and +habitations shall be re-edificed and repaired within one year; and all +tillage lands turned into pasture shall be again restored into tillage; +and in default, half the value of the lands and houses forfeited to the +king, or lord of the fee, until they were re-edificed. On failure of the +next lord, the lord above him might seize." + +This act did not produce that increased tilth which was anticipated. +Farmers' attention was turned to sheepbreeding; and in order to supply +the deficiency of cattle, an act was passed in the 21st Henry VIII., to +enforce the rearing of calves; and every farmer was, under a penalty of +6s. 8d. (about L3 of our currency), compelled to rear all his calves for +a period of three years; and in the 24th Henry VIII. the act was +further continued for two years. The culture of flax and hemp was also +encouraged by legislation. The 24th Henry VIII., cap. 14, requires every +person occupying land apt for tillage, to sow a quarter of an acre of +flax or hemp for every sixty acres of land, under a penalty of 3s. 4d. + +The profit which arose from sheep-farming led to the depasturage of the +land; and in order to check it, an act, 25 Henry VIII., cap. 13, was +passed. It commences thus: + +"Forasmuch as divers and sundry persons of the king's subjects of +this realm, to whom God of His goodness hath disposed great plenty and +abundance of movable substance, now of late, within few years, have +daily studied, practised, and invented ways and means how they might +gather and accumulate together into few hands, as well great multitude +of farms, as great plenty of cattle and in especial sheep, putting such +lands as they can get to pasture and not to tillage: whereby they have +not only pulled down churches and towns, and enhanced the old rates +of the rents of possessions of this realm, or else brought it to such +excessive fines that no poor man is able to meddle with it, but have +also raised and enhanced the prices of all manner of corn, cattle, wool, +pigs, geese, hens, chickens, eggs, and such commodities almost double +above the prices which hath been accustomed, by reason whereof a +marvellous multitude of the poor people of this realm be not able to +provide meat, drink, and clothes necessary for themselves, their wives, +and children, but be so discouraged with misery and poverty, that they +fall daily to theft, robbery, and other inconveniences, or pitifully die +for hunger and cold; and it is thought by the king's humble and loving +subjects, that one of the greatest occasions that moveth those greedy +and covetous people so to accumulate and keep in their hands such great +portions and parts of the lands of this realm from the occupying of the +poor husbandmen, and so use it in pasture and not in tillage, is the +great profit that cometh of sheep, which be now come into a few persons' +hands, in respect of the whole number of the king's subjects, so that +some have 24,000, some 20,000, some 10,000, some 6000, some 5000, +and some more or less, by which a good sheep for victual, which was +accustomed to be sold for 2s. 4d. or 3s. at most, is now sold for 6s., +5s., or 4s. at the least; and a stone of clothing wool, that in some +shire of this realm was accustomed to be sold from 16d. to 20d, is now +sold for 4s. or 3s. 4d. at the least; and in some counties, where it has +been sold for 2s. 4d. to 2s. 8d., or 3s. at the most, it is now 5s. or +4s. 8d. at the least, and so arreysed in every part of the realm, which +things thus used to be principally to the high displeasure of Almighty +God, to the decay of the hospitality of this realm, to the diminishing +king's people, and the let of the cloth making, whereby many poor people +hath been accustomed to be set on work; and in conclusion, if remedy be +not found, it may turn to the utter destruction and dissolution of this +realm which God defend." + +It was enacted that no person shall have or keep on lands not their own +inheritance more than 2000 sheep, under a penalty of 3s. 4d. per annum +for each sheep; lambs under a year old not to be counted; and that no +person shall occupy two farms. + +Further measures appeared needful to prevent the evil; and the 27th +Henry VIII., cap. 22, states that the 4th Henry VII., cap. 19, for +keeping houses in repair, and for the tillage of the land, had been +enforced on lands holden of the king, but neglected by other lords. It, +therefore, enacted that the king shall have the moiety of the profits +of lands converted from tillage to pasture, since the passing of the +4th Henry VII., until a proper house is built, and the land returned +to tillage; and in default of the immediate lord taking the profits as +under that act, the king might take the same. This act extended to +the counties of Lincoln, Nottingham, Leicester, Warwick, Rutland, +Northampton, Bedford, Buckingham, Oxford, Berkshire, Isle of Wight, +Hertford, and Cambridge. + +The simple fact was, that those who had formerly paid the rent of their +land by service as soldiers were without the capital or means of paying +rent in money; they were evicted and became vagrants. Henry VIII. took +a short course with these vagrants, and it is asserted upon apparently +good authority that in the course of his reign, thirty-six years, he +hanged no less than 72,000 persons for vagrancy, or at the rate of 2000 +per annum. The executions in the reign of his daughter, Queen Elizabeth, +had fallen to from 300 to 400 per annum. + +32 Henry VIII., cap. 1, gave powers of bequest with regard to land; as +it explains the change it effected, I quote it: + +"That all persons holding land in socage not having any lands holden by +knight service of the king in chief, be empowered to devise and dispose +of all such socage lands, and in like case, persons holding socage +lands of the king in chief, and also of others, and not having the lands +holden by knight service, saving to the king, all his right, title, and +interest for primer seizin, reliefs, fines for alienations, etc. Persons +holding lands of the king by knight's service in chief were authorized +to devise two third parts thereof, saving to the king wardship, primer +seizin, of the third paid, and fines for alienation of the whole lands. +Persons holding lands by knight's service in chief, and also other lands +by knight's service, or otherwise may in like manner devise two third +part thereof, saving to the king wardship of the third, and fines for +alienation of the whole. Persons holding land of others than the king +by knight's service, and also holding socage lands, may devise two third +parts of the former and the whole of the latter, saving to the lord +his wardship of the third part. Persons holding lands of the king by +knight's service but not in chief, or so holding of the king and others, +and also holding socage lands, may in like manner devise two thirds of +the former and the whole of the latter, saving to the king the wardship +of the third part, and also to the lords; and the king or the other +lords were empowered to seize the one third part in case of any +deficiency." + +The 34th and 35th Henry VIII., cap. 5, was passed to remove some doubts +which had arisen as to the former statute; it enacts: + +"That the words estates of inheritance should only mean estates in +fee-simple only, and empowers persons seized of any lands, etc., in +fee-simple solely, or in co-partnery (not having any lands holden of +knight's service), to devise the whole, except corporations. Persons +seized in fee-simple of land holden of the king by knight's service +may give or devise two thirds thereof, and of his other lands, except +corporation, such two thirds to be ascertained by the divisor or by +commission out of the Court of Ward and Liveries. The king was empowered +to take his third land descended to the heir in the first place, the +devise in gift remaining good for the two thirds; and if the land +described were insufficient to answer such third, the deficiency should +be made up out of the two thirds." + +"The next attack," remarks Sir William Blackstone, vol. ii., p. 117, +"which they suffered in order of time was by the statute 32 Henry VIII., +c. 28, whereby certain leases made by tenants in tail, which do not tend +to prejudice the issue, were allowed to be good in law and to bind the +issue in tail. But they received a more violent blow the same session +of Parliament by the construction put upon the statute of fines by the +statute 32 Henry VIII., cap. 36, which declares a fine duly levied by +tenant in tail to be a complete bar to him and his heirs and all other +persons claiming under such entail. This was evidently agreeable to the +intention of Henry VII., whose policy was (before common recovery had +obtained their full strength and authority) to lay the road as open as +possible to the alienation of landed property, in order to weaken the +overgrown power of his nobles. But as they, from the opposite reasons, +were not easily brought to consent to such a provision, it was therefore +couched in his act under covert and obscure expressions; and the judges, +though willing to construe that statute as favorably as possible for +the defeating of entailed estates, yet hesitated at giving fines so +extensive a power by mere implication when the statute DE DONIS had +expressly declared that they should not be a bar to estates-tail. But +the statute of Henry VIII., when the doctrine of alienation was better +received, and the will of the prince more implicitly obeyed than before, +avowed and established that intention." + +Fitzherbert, one of the judges of the Common Pleas in the reign of Henry +VIII., wrote a work on surveying and husbandry. It contains directions +for draining, clearing, and inclosing a farm, and for enriching the soil +and reducing it to tillage. Fallowing before wheat was practised, and +when a field was exhausted by grain it was allowed to rest. Hollingshed +estimated the usual return as 16 to 20 bushels of wheat per acre; prices +varied very greatly, and famine was of frequent recurrence. Leases began +to be granted, but they were not effectual to protect the tenant +from the entry of purchasers nor against the operation of fictitious +recoveries. + +In the succeeding reigns the efforts to encourage tillage and prevent +the clearing of the farms were renewed, and among the enactments passed +were the following: + +5 Edward VI., cap. 5, for the better maintenance of tillage and increase +of corn within the realm, enacts: + +"That there should be, in the year 1553, as much land, or more, put +wholly in tillage as had been at any time since the 1st Henry VIII., +under a penalty of 5s. per acre to the king; and in order to secure +this, it appoints commissioners, who were bound to ascertain by inquests +what land was in tillage and had been converted from tillage into +pasture. The commission issued precepts to the sheriffs, who summoned +jurors, and the inquests were to be returned, certified, to the Court of +Exchequer. Any prosecution for penalties should take place within three +years, and the act continues for ten years." + +2 and 3 Philip and Mary, cap. 2, recites the former acts of 4 Henry +VII., cap. 19, etc,, which it enforces. It enacts: + +"That as some doubts had arisen as to the interpretation of the words +twenty acres of land, the act should apply to houses with twenty acres +of land, according to the measurement of the ancient statute; and it +appoints commissioners to inquire as to all houses pulled down and all +land converted from pasture into tillage since the 4th Henry VII. The +commissioners were to take security by recognizance from offenders, +and to re-edify the houses and re-convert the land into tillage, and +to assess the tenants for life toward the repairs. The amount expended +under order of the commissioners was made recoverable against the +estate, and the occupiers were made liable to their orders; and they had +power to commit persons refusing to give security to carry out the act." + +2 and 3 Philip and Mary, cap. 3, was passed to provide for the increase +of milch cattle, and it enacts: + +"That one milch-cow shall be kept and calf reared for every sixty sheep +and ten oxen during the following seven years." + +The 2d Elizabeth, cap. 2, confirms the previously quoted acts of 4 Henry +VII., cap. 19; 7 Henry VIII., cap. 1; 27 Henry VIII., cap. 22; 27 Henry +VIII., cap. 18; and it enacts: + +"That all farm-houses belonging to suppressed monasteries should be +kept up, and that all lands which had been in tillage for four years +successively at any time since the 20th Henry VIII., should be kept in +tillage under a penalty of 10s. per acre, which was payable to the heir +in reversion, or in case he did not levy it, to the Crown." + +31 Elizabeth, cap. 7, went further; and in order to provide allotments +for the cottagers, many of whom were dispossessed from their land, it +provided: + +"For avoiding the great inconvenience which is found by experience to +grow by the erecting and building of great number of cottages, which +daily more and more increased in many parts of the realm, it was enacted +that no person should build a cottage for habitation or dwelling, +nor convert any building into a cottage, without assigning and laying +thereto four acres of land, being his own freehold and inheritance, +lying near the cottage, under a penalty of L10; and for upholding any +such cottages, there was a penalty imposed of 40s. a month, exception +being made as to any city, town, corporation, ancient borough, or market +town; and no person was permitted to allow more than one family to +reside in each cottage, under a penalty of 10s. per month." + +The 39th Elizabeth, cap. 2, was passed to enforce the observance of +these conditions. It provides: + +"That all lands which had been in tillage shall be restored thereto +within three years, except in cases where they were worn out by too much +tillage, in which case they might be grazed with sheep; but in order to +prevent the deterioriation of the land, it was enacted that the quantity +of beeves or muttons sold off the land should not exceed that which was +consumed in the mansion-house." + +In these various enactments of the Tudor monarchs we may trace the +anxious desire of these sovereigns to repair the mistake of Henry VII., +and to prevent the depopulation of England. A similar mistake has been +made in Ireland since 1846, under which the homes of the peasantry have +been prostrated, the land thrown out of tillage, and the people driven +from their native land. Mr. Froude has the following remarks upon this +legislation: + +"Statesmen (temp. Elizabeth) did not care for the accumulation of +capital. They desired to see the physical well-being of all classes of +the commonwealth maintained in the highest degree which the producing +power of the country admitted. This was their object, and they were +supported in it by a powerful and efficient majority of the nation. At +one time Parliament interfered to protect employers against laborers, +but it was equally determined that employers should not be allowed to +abuse their opportunities; and this directly appears from the 4th and +5th Elizabeth, by which, on the most trifling appearance of a diminution +of the currency, it was declared that the laboring man could no longer +live on the wages assigned to him by the Act of Henry VIII.; and a +sliding scale was instituted, by which, for the future, wages should be +adjusted to the price of food. The same conclusion may be gathered +also indirectly fom the acts interfering imperiously with the rights of +property where a disposition showed itself to exercise them selfishly. + +"The city merchants, as I have said, were becoming landowners, and some +of them attempted to apply their rules of trade to the management of +landed estates. While wages were rated so high, it answered better as a +speculation to convert arable land into pasture, but the law immediately +stepped in to prevent a proceeding which it regarded as petty treason +to the state. Self-protection is the first law of life, and the +country, relying for its defence on an able-bodied population, evenly +distributed, ready at any moment to be called into action, either +against foreign invasion or civil disturbance, it could not permit the +owners of land to pursue, for their own benefit, a course of action +which threatened to weaken its garrisons. It is not often that we are +able to test the wisdom of legislation by specific results so clearly +as in the present instance. The first attempts of the kind which I have +described were made in the Isle of Wight early in the reign of Henry +VII. Lying so directly exposed to attacks by France, the Isle of Wight +was a place which it was peculiarly important to keep in a state of +defence, and the 4th Henry VII., cap. 16, was passed to prevent the +depopulation of the Isle of Wight, occasioned by the system of large +farms." + +The city merchants alluded to by Froude seem to have remembered that +from the times of Athelwolf, the possession of a certain quantity of +land, with gatehouse, church, and kitchen, converted the ceorl (churl) +into a thane. + +It is difficult to estimate the effect which the Tudor policy had upon +the landholding of England. Under the feudal system, the land was held +in trust and burdened with the support of the soldiery. Henry VII., in +order to weaken the power of the nobles, put an end to their maintaining +independent soldiery. Thus landlords' incomes increased, though their +material power was curtailed. It would not have been difficult at this +time to have loaded these properties with annual payments equal to the +cost of the soldiers which they were bound to maintain, or to have +given each of them a farm under the Crown, and strict justice would have +prevented the landowners from putting into their pockets those revenues +which, according to the grants and patents of the Conqueror and his +successors, were specially devoted to the maintenance of the army. +Land was released from the conditions with which it was burdened when +granted. This was not done by direct legislation but by its being the +policy of the Crown to prevent "king-makers" arising from among the +nobility. The dread of Warwick influenced Henry. He inaugurated a policy +which transferred the support of the army from the lands, which should +solely have borne it, to the general revenue of the country. Thus he +relieved one class at the expense of the nation. Yet, when Henry was +about to wage war on the Continent, he called all his subjects to +accompany him, under pain of forfeiture of their lands; and he did not +omit levying the accustomed feudal charge for knighting his eldest son +and for marrying his eldest daughter. The acts to prevent the landholder +from oppressing the occupier, and those for the encouragement of +tillage, failed. The new idea of property in land, which then obtained, +proved too powerful to be altered by legislation. + +Another change in the system of landholding took place in those reigns. +Lord Cromwell, who succeeded Cardinal Wolsey as minister to Henry VIII., +had land in Kent, and he obtained the passing of an act (31 Henry VIII., +cap. 2) which took his land and that of other owners therein named, out +of the custom of gavelkind (gave-all-kind), which had existed in Kent +from before the Norman Conquest, and enacted that they should descend +according to common law in like manner as lands held by knight's +service. + +The suppression of the RELIGIOUS HOUSES gave the Crown the control of +a vast quantity of land. It had, with the consent of the Crown, been +devoted to religion by former owners. The descendants of the donors were +equitably entitled to the land, as it ceased to be applied to the trust +for which it was given, but the power of the Crown was too great, and +their claims were refused. Had these estates been applied to purposes +of religion or education they would have formed a valuable fund for the +improvement of the people; but the land itself, as well as the portion +of tithes belonging to the religious houses, was conferred upon +favorites, and some of the wealthiest nobles of the present day trace +their rise and importance to the rewards obtained by their ancestors out +of the spoils of these charities. + +The importance of the measures of the Tudors upon the system of +land-holding can hardly be exaggerated. An impulse of self-defence led +them to lessen the physical force of the oligarchy by relieving the land +from the support of the army, and enabling them to convert to their own +use the income previously applied to the defence of the realm. This was +a bribe, but it brought its own punishment. The eviction of the working +farmers, the demolition of their dwellings, the depopulation of the +country, were evils of most serious magnitude; and the supplement of +the measures which produced such deplorable results was found in the +permanent establishment of a taxation for the SUPPORT of the POOR. Yet +the nation reeled under the depletion produced by previous mistaken +legislation, and all classes have been injured by the transfer of the +support of the army from the land held by the nobles to the income of +the people. + +Side by side, with the measures passed, to prevent the Clearing of the +Land, arose the system of POOR LAWS. Previous to the Reformation the +poor were principally relieved at the religious houses. The destruction +of small farms, and the eviction of such masses of the people, which +commenced in the reign of Henry VII., overpowered the resources of +these establishments; their suppression in the reigns of Henry VIII. +and Elizabeth aggravated the evil. The indiscriminate and wholesale +execution of the poor vagrants by the former monarch only partially +removed the evil, and the statute-book is loaded with acts for the +relief of the destitute poor. The first efforts were collections in the +churches; but voluntary alms proving insufficient, the powers of the +churchwardens were extended, and they were directed and authorized +to assess the parishioners according to their means, and thus arose a +system which, though benevolent in its object, is a slur upon our social +arrangements. Land, the only source of food, is rightly charged with the +support of the destitute. The necessity for such aid arose originally +from their being evicted therefrom. The charge should fall exclusively +upon the rent receivers, and in no case should the tiller of the soil +have to pay this charge either directly or indirectly. It is continued +by the inadequacy of wages, and the improvidence engendered by a social +system which arose out of injustice, and produced its own penalty. + +Legislation with regard to the poor commenced contemporaneous with the +laws against the eviction of the small farmers. I have already recited +some of the laws to preserve small holdings; I now pass to the +acts meant to compel landholders to provide for those whom they had +dispossessed. In 1530 the act 22 Henry VIII., cap. 12, was passed; it +recites: + +"Whereas in all places through the realm of England, vagabonds and +beggars have of long time increased, and daily do increase, in great and +excessive numbers by THE OCCASION OF IDLENESS, THE MOTHER AND ROOT OF +ALL VICES, [Footnote: See 4 Henry VII., cap, 19, ante, p. 27, where the +same expression occurs, showing that it was throwing the land out of +tilth that occasioned pauperism.] whereby hath insurged and sprung, +and daily insurgeth and springeth, continual thefts, murders, and other +heinous offences and great enormities, to the high displeasure of +God, the inquietation and damage of the king and people, and to the +marvellous disturbance of the commonweal of the realm." + +It enacts that justices may give license to impotent persons to beg +within certain limits, and, if found begging out of their limits, they +shall be set in the stocks. Beggars without license to be whipped or set +in the stocks. All persons able to labor, who shall beg or be vagrant, +shall be whipped and sent to the place of their birth. Parishes to be +fined for neglect of the constables. + +37 Henry VIII., cap. 23, continued this act to the end of the ensuing +Parliament. + +1 Edward VI., cap. 3, recites the increase of idle vagabonds, and enacts +that all persons loitering or wandering shall be marked with a V, and +adjudged a slave for two years, and afterward running away shall become +a felon. Impotent persons were to be removed to the place where they had +resided for three years, and allowed to beg. A weekly collection was +to be made in the churches every Sunday and holiday after reading the +gospel of the day, the amount to be applied to the relief of bedridden +poor. + +5 and 6 Edward VI., cap. 2, directs the parson, vicar, curate, and +church-wardens, to appoint two collectors to distribute weekly to the +poor. The people were exhorted by the clergy to contribute; and, if they +refuse, then, upon the certificate of the parson, vicar, or curate, to +the bishop of the diocese, he shall send for them and induce him or them +to charitable ways. + +2 and 3 Philip and Mary, cap. 5, re-enacts the former, and requires the +collectors to account quarterly; and where the poor are too numerous for +relief, they were licensed by a justice of the peace to beg. + +5 Elizabeth, cap. 3, confirms and renews the former acts, and compels +collectors to serve under a penalty of L10. Persons refusing to +contribute their alms shall be exhorted, and, if they obstinately +refuse, shall be bound by the bishop to appear at the next general +quarter session, and they may be imprisoned if they refuse to be bound. + +The 14th Elizabeth, cap. 5, requires the justices of the peace to +register all aged and impotent poor born or for three years resident in +the parish, and to settle them in convenient habitations, and ascertain +the weekly charge, and assess the amount on the inhabitants, and yearly +appoint collectors to receive and distribute the assessment, and also an +overseer of the poor. This act was to continue for seven years. + +The 18th Elizabeth, cap. 3, provides for the employment of the poor. +Stores of wool, hemp, flax, iron, etc., to be provided in cities and +towns, and the poor set to work. It empowered persons possessed of land +in free socage to give or devise same for the maintenance of the poor. + +The 39th Elizabeth, cap. 3, and the 43d Elizabeth, cap. 2, extended +these acts, and made the assessment compulsory. + +I shall ask you to compare the date of these several laws for the +relief of the destitute poor with the dates of the enactments against +evictions. You will find they run side by side. + + [Footnote: The following tables of the acts passed against + eviction, and enacting the support of the poor, show that + they were contemporaneous: + + Against Evictions. + 4 Henry VII., Cap. 19. + 7 Henry VIII, Cap. 1. + 21 Henry VIII, + 24 Henry VIII, Cap. 14. + 25 Henry VIII, Cap. 13. + 27 Henry VIII, Cap. 22. + 5 Edward VI., Cap. 2. + 2 and 3 Philip and Mary, Cap. 2. + 2 and 3 Philip and Mary, Cap. 3. + 2 Elizabeth, Cap. 2. + 31 Elizabeth, Cap. 7. + 39 Elizabeth, Cap. 2. + + + Enacting Poor Laws. + 22 Henry VIII., Cap. 12. + 37 Henry VIII., Cap. 23. + 1 Edward VI., Cap. 3. + 5 and 6 Edward VI., Cap. 2. + 2 and 4 Philip and Mary, Cap. 5. + 5 Elizabeth, Cap. 3. + 14 Elizabeth, Cap. 5. + 18 Elizabeth, Cap. 3. + 39 Elizabeth, Cap. 3. + 43 Elizabeth, Cap. 2.] + +I have perhaps gone at too great length into detail; but I think I could +not give a proper picture of the alteration in the system of landholding +or its effects without tracing from the statute-book the black records +of these important changes. The suppression of monasteries tended +greatly to increase the sufferings of the poor, but I doubt if even +these institutions could have met the enormous pressure which arose from +the wholesale evictions of the people. The laws of Henry VII and Henry +VIII., enforcing the tillage of the land, preceded the suppression of +religious houses, and the act of the latter monarch allowing the poor to +beg was passed before any steps were taken to close the convents. That +measure was no doubt injurious to the poor, but the main evil arose from +other causes. The lands of these houses, when no longer applicable to +the purpose for which they were given, should have reverted to the heirs +of the donors, or have been applied to other religious or educational +purposes. The bestowal of them upon favorites, to the detriment alike of +the State, the Church, the Poor, and the Ignorant, was an abuse of great +magnitude, the effect of which is still felt. The reigns of the Tudors +are marked with three events affecting the land--viz.: + +1st. Relieving it of the support of the army; + +2d. Burdening of it with the support of the poor; + +3d. Applying the monastic lands to private uses. + +The abolition of retainers, while it relieved the land of the nobles +from the principal charge thereon, did not entirely abolish knight's +service. The monarch was entitled to the care of all minors, to aids +on the marriage or knighthood of the eldest son, to primerseizin or a +year's rent upon the death of each tenant of the Crown. These fees were +considerable, and were under the care of the Court of Ward and Liveries. + +The artisan class had, however, grown in wealth, and they were greatly +strengthened by the removal from France of large numbers of workmen in +consequence of the revocation of the Edict of Nantes. These prosperous +tradespeople became landowners by purchase, and thus tended to replace +the LIBERI HOMINES, or FREEMEN, who had been destroyed under the wars +of the nobles, which effaced the landmarks of English society. The +liberated serfs attained the position of paid farm-laborers; had the +policy of Elizabeth, who enacted that each of their cottages should have +an allotment of four acres of land, been carried out, it would have been +most beneficial to the state. + +The reign of this family embraced one hundred and eighteen years, during +which the increase of the population was about twenty-five per cent. +When Henry VII. ascended the throne in 1485 it was 4,000,000, and on the +death of Queen Elizabeth in 1603 it had reached 5,000,000, the average +increase being about 8000 per annum. The changes effected in the +condition of the farmers' class left the mass of the people in a far +worse state at the close than at the commencement of their rule. + + + + + +VII. THE STUARTS. + + +The accession of the Stuarts to the throne of England took place under +peculiar circumstances. The nation had just passed through two very +serious struggles--one political, the other religious. The land which +had been in the possession of religious communities, instead of being +retained by the state for educational or religious purposes, had been +given to favorites. A new class of ownership had been created--the lay +impropriators of tithes. The suppression of retainers converted land +into a quasi property. The extension to land of the powers of bequest +gave the possessors greater facilities for disposing thereof. It +was relieved from the principal feudal burden, military service, but +remained essentially feudal as far as tenure was concerned. Men were no +longer furnished to the state as payment of the knight's fee; they were +cleared off the land, to make room for sheep and oxen, England being +in that respect about two hundred years in advance of Ireland, though +without the outlet of emigration. Vagrancy and its attendant evils led +to the Poor Law. + +James I. and his ministers tried to grapple with the altered +circumstances, and strove to substitute and equitable Crown rent or +money payment for the existing and variable claims which were collected +by the Court of Ward and Livery. The knight's fee then consisted of +twelve plough-lands, a more modern name for "a hide of land." The class +burdened with knight's service, or payments in lieu thereof, comprised +160 temporal and 26 spiritual lords, 800 barons, 600 knights, and 3000 +esquires. The knight's fee was subject to aids, which were paid to the +Crown upon the marriage of the king's son or daughter. Upon the death +of the possessor, the Crown received primer-seizen a year's rent. If the +successor was an infant, the Crown under the name of Wardship, took the +rents of the estates. If the ward was a female, a fine was levied if she +did not accept the husband chosen by the Crown. Fines on alienation +were also levied, and the estates, though sold, became escheated, and +reverted to the Crown upon the failure of issue. These various fines +kept alive the principle that the lands belonged to the Crown as +representative of the nation; but, as they varied in amount, James I. +proposed to compound with the tenants-in-fee, and to convert them into +fixed annual payments. The nobles refused, and the scheme was abandoned. + +In the succeeding reign, the attempt to stretch royal power beyond its +due limits led to resistance by force, but it was no longer a mere war +of nobles; their power had been destroyed by Henry VII. The Stuarts had +to fight the people, with a paid army, and the Commons, having the +purse of the nation, opposed force to force. The contest eventuated in +a military protectorship. Many of the principal tenants-in-fee fled +the country to save their lives. Their lands were confiscated and given +away; thus the Crown rights were weakened, and Charles II. was forced to +recognize many of the titles given by Cromwell; he did not dare to +face the convulsion which must follow an expulsion of the novo homo in +posession of the estates of more ancient families; but legislation went +further--it abolished all the remaining feudal charges. The Commons +appear to have assented to this change, from a desire to lessen the +private income of the Sovereign, and thus to make him more dependent +upon Parliament, This was done by the 12th Charles II., cap. 24. It +enacts: + +"That the Court of Ward and Liveries, primer seizin, etc., and all fines +for alienation, tenures by knight's service, and tenures in capite, be +done away with and turned into fee and common socage, and discharged of +homage, escuage, aids, and reliefs. All future tenures created by the +king to be in free and common socage, reserving rents to the Crown +and also fines on alienation. It enables fathers to dispose of their +children's share during their minority, and gives the custody of the +personal estate to the guardians of such child, and imposes in lieu of +the revenues raised in the Court of Ward and Liveries, duties upon beer +and ale." + +The land was relieved of its legitimate charge, and a tax on beer and +ale imposed instead! the landlords were relieved at the expense of +the people. The statute which accomplished this change is described by +Blackstone as + +"A greater acquisition to the civil property of this kingdom than even +Magna Charta itself, since that only pruned the luxuriances that had +grown out of military tenures, and thereby preserved them in vigor; but +the statute of King Charles extirpated the whole, and demolished both +root and branches." + +The efforts of James II. to rule contrary to the wish of the nation, +led to his expulsion from the throne, and showed that, in case of future +disputes as to the succession, the army, like the Praetorian Guards of +Rome, had the election of the monarch. The Red and White Roses of the +Plantagenets reappeared under the altered names of Whig and Tory; but +it was proved that the decision of a leading soldier like the Duke of +Marlborough would decide the army, and that it would govern the nation; +fortunately the decision was a wise one, and was ratified by Parliament: +thus FORCE governed LAW, and the decision of the ARMY influenced the +SENATE. William III. succeeded, AS AN ELECTED MONARCH, under the Bill +of Rights. This remarkable document contains no provision, securing the +tenants-in-fee in their estates; and I have not met with any treatise +dealing with the legal effects of the eviction of James II. All patents +were covenants between the king and his heirs, and the patentees and +their heirs. The expulsion of the sovereign virtually destroyed the +title; and an elected king, who did not succeed as heir, was not bound +by the patents of his predecessors, nor was William asked, by the Bill +of Rights, to recognize any of the existing titles. This anomalous state +of things was met in degree by the statute of prescriptions, but even +this did not entirely cure the defect in the titles to the principal +estates in the Kingdom. The English tenants in decapitating one landlord +and expelling another, appear to have destroyed their titles, and then +endeavored to renew them by prescriptive right; but I shall not pursue +this topic further, though it may have a very definite bearing upon the +question of landholding. + +It may not be uninteresting to allude rather briefly to the state of +England at the close of the seventeenth century. Geoffrey King, who +wrote in 1696, gives the first reliable statistics about the state of +the country. He estimated the number of houses at 1,300,000, and the +average at four to each house, making the population 5,318,000. He says +there was but seven acres of land for each person, but that England was +six times better peopled than the known world, and twice better than +Europe. He calculated the total income at L43,500,000, of which the +yearly rent of land was L10,000,000. The income was equal to L7, 18s. +0d. per head, and the expense L7, 11s. 4d.; the yearly increase, 6s. 8d. +per head, or L1,800,000 per annum. He estimated the annual income of 160 +temporal peers at L2800 per annum, 26 spiritual peers at L1300, of 800 +baronets at L800, and of 600 knights at L650. + +He estimated the area at 39,000,000 acres (recent surveys make it +37,319,221). He estimated the arable land at 11,000,000 acres, and +pasture and meadow at 10,000,000, a total of 21,000,000. The area under +all kinds of crops and permanent pasture was, in 1874, 26,686,098 acres; +therefore about five and a half million acres have been reclaimed and +added to the arable land. As the particulars of his estimate may prove +interesting, I append them in a note. + + + [Footnote--Geoffrey King thus classifies the land of England and + Wales: + + + + Acres. Value/Acre Rent + + Arable Land, 11,000,000 L0 5 10 L3,200,000 + Pasture and Meadow, 10,000,000 0 9 0 4,500,000 + Woods and Coppices, 3,000,000 0 5 0 750,000 + Forests, Parks, and Covers, 3,000,000 0 3 6 550,000 + Moors, Mountains, and Barren Lands, 10,000,000 0 1 0 500,000 + Houses, Homesteads, Gardens, Orchards,) 1,000,000 (The Land, 450,000 + Churches, and Churchyards, ) (The Buildings, 2,000,000 + Rivers, Lakes, Meres, and Ponds, 500,000 0 2 0 50,000 + Roadways and Waste Lands, 500,000 + ---------- ------- ---------- + 39,000,000 L0 6 0 L12,000,000 + + He estimates the live stock thus: + Value without + the Skin + Beeves, Stirks, and Calves, 4,500,000 L2 0 0 L9,000,000 + Sheep and Lambs, 11,000,000 0 8 0 4,400,000 + Swine and Pigs, 2,000,000 0 16 0 1,600,000 + Deer, Fawns, Goats and Kids, 247,900 + + 15,247,900 + + Horses, 1,200,000 2 0 0 3,000,000 + Value of Skins, 2,400,000 + ----------- + L20,647,900 + + The annual produce he estimated as follows: + + Acres Rent Produce + Grain, 10,000,000 L3,000,000 L8,275,000 + Hemp, Flax, etc., 1,000,000 200,000 2,000,000 + Butter, Cheese, and Milk, ) ( 2,500,000 + Wool, ) ( 2,000,000 + Horses bred, ) ( 250,000 + Flesh Meat, )- 29,000,000 6,800,000 -( 3,500,000 + Tallow and Hides, ) ( 600,000 + Hay Consumed, ) ( 2,300,000 + Timber, ) ( 1,000,000 + ---------- ----------- ----------- + Total 39,000,000 L10,000,000 L22,275,000] + + +He places the rent of the corn land at about one third of the produce, +and that of pasture land at rather more. The price of meat per lb. was: +beef 1 and 1/8d.; mutton, 2 and 1/4d.; pork, 3d.; venison, 6d.; hares, +7d.; rabbits, 6d. The weight of flesh-meat consumed was 398,000,000 +lbs., it being 72 lbs. 6 oz. for each person, or 3 and 1/6 oz. daily. +I shall have occasion to contrast these figures with those lately +published when I come to deal with the present; but a great difference +has arisen from the alteration in price, which is owing to the increase +in the quantity of the precious metals. + +The reign of the last sovereign of this unfortunate race was +distinguished by the first measures to inclose the commons and convert +them into private property, with which I shall deal hereafter. + +The changes effected in the land laws of England during the reigns of +the Stuarts, a period of 111 years, were very important. The act of +Charles II. which abolished the Court of Ward and Liveries, appeared to +be an abandonment of the rights of the people, as asserted in the person +of the Crown; and this alteration also seemed to give color of right to +the claim which is set up of property in land, but the following law of +Edward III. never was repealed: + +"That the king is the universal lord and original proprietor of all land +in his kingdom, and that no man doth or can possess any part of it but +what has mediately or immediately been derived as a gift from him to be +held on feodal service." + +No lawyer will assert for any English subject a higher title than +tenancy-in-fee, which bears the impress of holding and denies the +assertion of ownership. + +The power of the nobles, the tenants-in-fee, was strengthened by an act +passed in the reign of William and Mary, which altered the relation of +landlord and tenant. Previous thereto, the landlord had the power of +distraint, but he merely held the goods he seized to compel the tenant +to perform personal service. It would be impossible for a tenant to pay +his rent if his stock or implements were sold off the land. As the +Tudor policy of money payments extended, the greed for pelf led to +an alteration in the law, and the act of William and Mary allowed the +landlord to sell the goods he had distrained. The tenant remained +in possession of the land without the means of tilling it, which was +opposed to public policy. This power of distraint was, however, confined +to holdings in which there were leases by which the tenant covenanted to +allow the landlord to distrain his stock and goods in default of payment +of rent. The legislation of the Stuarts was invariably favorable to +the possessor of land and adverse to the rights of the people. The +government during the closing reigns was oligarchical, so much so, that +William III., annoyed at the restriction put upon his kingly power, +threatened to resign the crown and retire to Holland; but the +aristocracy were unwilling to relax their claims, and they secured by +legislation the rights they appeared to have lost by the deposition of +the sovereign. + +The population had increased from 5,000,000 in 1603 to 5,750,000 in +1714, being an average increase of less than 7000 per annum. + + + + + +VIII. THE HOUSE OF HANOVER. + + +The first sovereign of the House of Hanover ascended the throne not by +right of descent but by election; the legitimate heir was set aside, and +a distant branch of the family was chosen, and the succession fixed by +act of Parliament; but it is held by jurists that every Parliament +is sovereign and has the power of repealing any act of any former +Parliament. The beneficial rule of some of the latter monarchs of this +family has endeared them to the people, but the doctrine of reigning by +divine right, the favorite idea of the Stuarts, is nullified, when +the monarch ascends the throne by statute law and not by succession or +descent. + +The age of chivalry passed away when the Puritans defeated the +Cavaliers. The establishment of standing armies and the creation of +a national debt, went to show that money, not knighthood or knight's +service, gave force to law. The possession of wealth and of rent gave +back to their possessors even larger powers than those wrested from +them by the first Tudor king. The maxim that "what was attached to the +freehold belonged to the freehold," gave the landlords even greater +powers than those held by the sword, and of which they were despoiled. +Though nominally forbidden to take part in the election of the +representatives of the Commons, yet they virtually had the power, the +creation of freehold, the substance and material of electoral right; and +consequently both Houses of Parliament were essentially landlord, and +the laws, for the century which succeeded the ascension of George I., +are marked with the assertion of landlord right which is tenant wrong. + +Among the exhibitions of this influence is an act passed in the reign +of George II., which extended the power of distraint for rent, and the +right to sell the goods seized--to all tenancies. Previous legislation +confined this privilege solely to cases in which there were leases, +wherein the tenant, by written contract, gave the landlord power to +seize in case of non-payment of rent, but there was no legal authority +to sell until it was given by an act passed in the reign of William III. +The act of George II. presumed that there was such a contract in all +cases of parole letting or tenancy-at-will, and extended the landlord's +powers to such tenancies. It is an anomaly to find that in the freest +country in the world such an arbitrary power is confided to individuals, +or that the landlord-creditor has the precedence over all other +creditors, and can, by his own act, and without either trial or +evidence, issue a warrant that has all the force of the solemn judgment +of a court of law; and it certainly appears unjust to seize a crop, the +seed for which is due to one man, and the manure to another, and apply +it to pay the rent. But landlordism, intrusted with legislative power, +took effectual means to preserve its own prerogative, and the form of +law was used by parliaments, in which landlord influence was paramount, +to pass enactments which were enforced by the whole power of the state, +and sustained individual or class rights. + +The effect of this measure was most unfortunate; it encouraged the +letting of lands to tenants-at-will or tenants from year to year, +who could not, under existing laws, obtain the franchise or power to +vote--they were not FREEMEN, they were little better than serfs. They +were tillers of the soil, rent-payers who could be removed at the +will of another. They were not even freeholders, and had no political +power--no voice in the affairs of the nation. The landlords in +Parliament gave themselves, individually by law, all the powers which a +tenant gave them by contract, while they had no corresponding liability, +and, therefore, it was their interest to refrain from giving leases, and +to make their tenantry as dependent on them as if they were mere serfs. +This law was especially unfortunate, and had a positive and very great +effect upon the condition of the farming class and upon the nation, and +people came to think that landlords could do as they liked with their +land, and that the tenants must be creeping, humble, and servile. + +An effort to remedy this evil was made in 1832, when the occupiers, if +rented or rated at the small amount named, became voters. This gave the +power to the holding, not to the man, and the landlord could by simple +eviction deprive the man of his vote; hence the tenants-at-will were +driven to the hustings like sheep--they could not, and dare not, refuse +to vote as the landlord ordered. + +The lords of the manor, with a landlord Parliament, asserted their +claims to the commonages, and these lands belonging to the people, +were gradually inclosed, and became the possession of individuals. The +inclosing of commonages commenced in the reign of Queen Anne, and was +continued in the reigns of all the sovereigns of the House of Hanover. +The first inclosure act was passed in 1709; in the following thirty +years the average number of inclosure bills was about three each year; +in the following fifty years there were nearly forty each year; and in +the forty years of the nineteenth century it was nearly fifty per annum. + +The inclosures in each reign were as follows: + + Acts. Acres. + Queen Anne, 2 1,439 + George I., 16 17,660 + George II., 226 318,784 + George III., 3446 3,500,000 + George IV., 192 250,000 + William IV., 72 120,000 + ---- --------- + Total, 3954 4,207,883 + +These lands belonged to the people, and might have been applied to +relieve the poor. Had they been allotted in small farms, they might have +been made the means of support of from 500,000 to 1,000,000 families, +and they would have afforded employment and sustenance to all the +poor, and thus rendered compulsory taxation under the poor-law system +unnecessary; but the landlords seized on them and made the tenantry pay +the poor-rate. + +The British Poor Law is a slur upon its boasted civilization. The +unequal distribution of land and of wealth leads to great riches and +great poverty. Intense light produces deep shade. Nowhere else but in +wealthy England do God's creatures die of starvation, wanting food, +while others are rich beyond comparison. The soil which affords +sustenance for the people is rightly charged with the cost of feeding +those who lack the necessaries of life, but the same object would be +better achieved in a different way. Poor-rates are now a charge upon a +man's entire estate, and it would be much better for society if land +to an amount equivalent to the charge were taken from the estate and +assigned to the poor. If a man is charged with L100 a year poor-rate, +it would make no real difference to him, while it would make a vast +difference to the poor to take land to that value, put the poor to work +tilling it, allowing them to enjoy the produce. Any expense should be +paid direct by the landlord, which would leave the charge upon the land, +and exempt the improvements of the tenant, which represent his labor, +free. + +The evil has intensified in magnitude, and a permanent army of paupers +numbering at the minimum 829,281 persons, but increasing at some +periods to upward of 1,000,000, has to be provided for; the cost, about +L8,000,000 a year, is paid, not by landlords but by tenants, in addition +to the various charities founded by benevolent persons. There are two +classes relieved under this system, and which ought to be differently +dealt with--the sick and the young. Hospitals for the former and schools +for the latter ought to take the place of the workhouse. It is difficult +to fancy a worse place for educating the young than the workhouse, and +it would tend to lessen the evil were the children of the poor trained +and educated in separate establishments from those for the reception +of paupers. Pauperism is the concomitant of large holdings of land and +insecurity of tenure. The necessity of such a provision arose, as I have +previously shown, from the wholesale eviction of large numbers of the +occupiers of land; and, as the means of supplying the need came from +the LAND, the expense should, like tithes, have fallen exclusively +upon land. The poor-rates are, however, also levied upon houses and +buildings, which represent labor. The owner of land is the people, as +represented by the Crown, and the charges thereon next in succession to +the claims of the state are the church and the poor. + +The Continental wars at the close of the eighteenth and the commencement +of the nineteenth century had some effect upon the system of tillage; +they materially enhanced the price of agricultural produce--rents were +raised, and the national debt was contracted, which remains a burden on +the nation. + +The most important change, however, arose from scientific and mechanical +discoveries--the application of heat to the production of motive power. +As long as water, which is a non-exhaustive source of motion, was used, +the people were scattered over the land; or if segregation took place, +it was in the neighborhood of running streams. The application of steam +to the propulsion of machinery, and the discovery of engines capable of +competing with the human hand, led to the substitution of machine-made +fabrics for clothing, in place of homespun articles of domestic +manufacture. This led to the employment of farm-laborers in procuring +coals, to the removal of many from the rural into the urban districts, +to the destruction of the principal employment of the family during the +winter evenings, and consequently effected a great revolution in the +social system. Many small freeholds were sold, the owners thinking they +could more rapidly acquire wealth by using the money representing their +occupancy, in trade. Thus the large estates became larger, and the +smaller ones were absorbed, while the appearance of greater wealth from +exchanging subterranean substances for money, or its representative, +gave rise to ostentatious display. The rural population gradually +diminished, while the civic population increased. The effect upon the +system of landholding was triplicate. First, there was a diminution in +the amount of labor applicable to the cultivation of land; second, there +was a decrease in the amount of manure applied to the production of +food; and lastly, there was an increase in the demand for land as a +source of investment, by those who, having made money in trade, sought +that social position which follows the possession of broad acres. Thus +the descendants of the feudal aristocracy were pushed aside by the +modern plutocracy. + +This state of things had a double effect. Food is the result of two +essential ingredients--land and labor. The diminution in the amount of +labor applied to the soil, consequent upon the removal of the laborers +from the land, lessened the quantity of food; while the consumption of +that food in cities and towns, and the waste of the fertile ingredients +which should be restored to the soil, tended to exhaust the land, and +led to vast importations of foreign and the manufacture of mineral +manures. I shall not detain you by a discussion of this aspect of the +question, which is of very great moment, consequent upon the removal +of large numbers of people from rural to urban districts; but I may +be excused in saying that agricultural chemistry shows that the +soil--"perpetual man"--contains the ingredients needful to support human +life, and feeding those animals meant for man's use. These ingredients +are seized upon by the roots of plants and converted into aliment. If +they are consumed where grown, and the refuse restored to the soil, its +fertility is preserved; nay, more, the effect of tillage is to increase +its productive power. It is impossible to exhaust land, no matter how +heavy the crops that are grown, if the produce is, after consumption, +restored to the soil. I have shown you how, in the reign of Queen +Elizabeth, a man was not allowed to sell meat off his land unless he +brought to, and consumed on it, the same weight of other meat. This was +true agricultural and chemical economy. But when the people were removed +from country to town, when the produce grown in the former was consumed +in the latter, and the refuse which contained the elements of fertility +was not restored to the soil, but swept away by the river, a process +of exhaustion took place, which has been met in degree by the use of +imported and artificial manures. The sewage question is taken up mainly +with reference to the health of towns, but it deserves consideration in +another aspect--its influence upon the production of food in the nation. + +An exhaustive process upon the fertility of the globe has been set on +foot. The accumulations of vegetable mould in the primeval forests +have been converted into grain, and sent to England, leaving permanent +barrenness in what should be prolific plains; and the deposits of the +Chincha and Ichaboe Islands have been imported in myriads of tons, to +replace in our own land the resources of which it is bereft by the civic +consumption of rural produce. + +These conjoined operations were accelerated by the alteration in the +British corn laws in 1846, which placed the English farmer, who tried to +preserve his land in a state of fertility, in competition with foreign +grain--growers, who, having access to boundless fields of virgin soil, +grow grain year after year until, having exhausted the fertile element, +they leave it in a barren condition, and resort to other parts. A +competition under such circumstances resembles that of two men of equal +income, one of who appears wealthy by spending a portion of his capital, +the other parsimonious by living within his means. Of course, the latter +has to debar himself of many enjoyments. The British farmer has lessened +the produce of grain, and consequently of meat; and the nation has +become dependent upon foreigners for meat, cheese, and butter, as well +as for bread. + +This is hardly the place to discuss a question of agriculture, but +scientific farmers know that there is a rotation of crops, [Footnote: +The agricultural returns of the United Kingdom show that 50 and 1/2 per +cent of the arable land was under pasture, 24 per cent under grain, +12 per cent under green crops and bare fallow, and 13 per cent under +clover. The rotation would, therefore, be somewhat in this fashion: +Nearly one fourth of the land in tillage is under a manured crop or +fallow, one fourth under wheat, one fourth under clover, and one fourth +under barley, oats, etc., the succession being, first year, the manured +crop; next year, wheat; third year, clover; fourth, barley or oats; and +so on.] and that as one is diminished the others lessen. The quantity +under tillage is a multiple of the area under grain. A diminution in +corn is followed by a decrease of the extent under turnips and under +clover; the former directly affects man, the latter the meat-affording +animals. A decrease in the breadth under tillage means an addition to +the pasture land, which in this climate only produces meat during the +warm portions of the year. I must, however, not dwell upon this topic, +but whatever leads to a diminution in the labor applied to the land +lessens the production of food, and DEAR MEAT may only be the supplement +to CHEAP CORN. + +I shall probably be met with the hackneyed cry, The question is entirely +one of price. Each farmer and each landlord will ask himself, Does it +pay to grow grain? and in reply to any such inquiry, I would refer to +the annual returns. I find that in the five years, 1842 to 1846, wheat +ranged from 50s. 2d. to 57s. 9d.; the average for the entire period +being 54s. 10d. per quarter. In the five years from 1870 to 1874 it +ranged from 46s. 10d. to 58s. 8d., the average for the five years being +54s. 7d. per quarter. The reduction in price has only been 3d. per +quarter, or less than one half per cent. + +I venture to think that there are higher considerations than mere profit +to individuals, and that, as the lands belong to the whole state as +represented by the Crown, and as they are held in trust TO PRODUCE FOOD +FOR THE PEOPLE, that trust should be enforced. + +The average consumption of grain by each person is about a quarter +(eight bushels) per annum. In 1841 the population of the United Kingdom +was 27,036,450. The average import of foreign grain was about 3,000,000 +quarters, therefore TWENTY-FOUR MILLIONS were fed on the domestic +produce. In 1871 the population was 31,513,412, and the average +importation of grain 20,000,000 quarters; therefore only ELEVEN AND A +HALF MILLIONS were supported by home produce. Here we are met with the +startling fact that our own soil is not now supplying grain to even +one half the number of people to whom it gave bread in 1841. This is a +serious aspect of the question, and one that should lead to examination, +whether the development of the system of landholding, the absorptions of +small farms and the creation of large ones, is really beneficial to the +state, or tends to increase the supply of food. The area under grain +in England in 1874 was 8,021,077. In 1696 it was 10,000,000 acres, the +diminution having been 2,000,000 acres. The average yield would probably +be FOUR QUARTERS PER ACRE, and therefore the decrease amounted to the +enormous quantity of EIGHT MILLION QUARTERS, worth L25,000,000, which +had to be imported from other countries, to fill up the void, and feed +8,000,000 of the population; and if a war took place, England may, like +Rome, be starved into peace. + +An idea prevails that a diminution in the extent under grain implies an +increase in the production of meat. The best answer to that fallacy lies +in the great increase in the price of meat. If the supply had increased +the price would fall, but the converse has taken place. A comparison of +the figures given by Geoffrey King, in the reign of William III., with +those supplied by the Board of Trade in the reign of Queen Victoria, +illustrates this phase of the landholding question, and shows whether +the "enlightened policy" of the nineteenth century tends to encourage +the fulfilment of the trust which applies to land--THE PRODUCTION OF +FOOD. + +The land of England and Wales in 1696 and 1874 was classified as +follows: + + 1696. 1874. + Acres. Acres. + Under grain, 10,000,000 8,021,077 + Pastures and meadows, 10,000,000 12,071,791 + Flax, hemp, and madder, 1,000,000 --------- + Green crops, --------- 2,895,138 + Bare fallow, --------- 639,519 + Clover --------- 2,983,733 + Orchards, 1,000,000 148,526 + Woods, coppices, etc, 3,000,000 1,552,598 + Forests, parks, and commons, 3,000,000| + Moors, mountains, and bare land, 10,000,000|- 9,006,839 + Waste, water, and road, 1,000,000| + ----------- ----------- + 39,000,000 37,319,231 + +The estimate of 1696 may be corrected by lessing the quantity of +waste land, and thus bringing the total to correspond with the extent +ascertained by actual survey, but it shows a decrease in the extent +under grain of nearly two million acres, and an increase in the area +applicable to cattle of nearly 8,000,000 acres; yet there is a decrease +in the number of cattle, though an increase in sheep. The returns are as +follows: + + 1696. 1800. 1874. + Cattle 4,500,000 2,852.428 4,305,440 + Sheep 11,000,000 26,148,000 19,859,758 + Pigs 2,000,000 (not given) 2,058,791 + +The former shows that in 1696 there were TEN MILLION acres under grain, +the latter only EIGHT MILLION acres. Two million acres were added for +cattle feeding. The former shows that the pasture land was TEN MILLION +ACRES, and that green crops and clover were unknown. The latter that +there were TWELVE MILLION ACRES under pasture, and, in addition, that +there were nearly THREE MILLION ACRES of green crop and THREE MILLION +ACRES of clover. The addition to the cattle-feeding land was eight +million acres; yet the number of cattle in 1696 was 4,500,000, and in +1874, 4,305,400. Of sheep, in 1696, there were 11,000,000, and in 1874, +19,889,758. The population had increased fourfold, and it is no marvel +that meat is dear. It is the interest of agriculturists to KEEP DOWN THE +QUANTITY AND KEEP UP THE PRICE. The diminution in the area under corn +was not met by a corresponding increase in live stock--in other words, +the decrease of land under grain is not, PER SE, followed by an increase +of meat. If the area under grain were increased, it would be preceded by +an increase in the growth of turnips, and followed by a greater growth +of clover; and these cattle-feeding products would materially add to the +meat supply. + +A most important change in the system of landholding was effected by the +spread of RAILWAYS. It was brought about by the influence of the trading +as opposed to the landlord class. In their inception they did not appear +likely to effect any great alteration in the land laws. The shareholders +had no compulsory power of purchase, hence enormous sums were paid for +the land required; but as the system extended, Parliament asserted the +ownership of the nation, over land in the possession of the individual. +Acting on the idea that no man was more than a tenant, the state took +the land from the occupier, as well as the tenant-in-fee, and gave it, +not at their own price, but an assessed value, to the partners in a +railway who traded for their mutual benefit, yet as they offered to +convey travellers and goods at a quicker rate than on the ordinary +roads, the state enabled them to acquire land by compulsion. A general +act, the Land Clauses Act, was passed in 1846, which gives privileges +with regard to the acquisition of land to the promoters of such works as +railways, docks, canals, etc. Numbers of acts are passed every session +which assert the right of the state over the land, and transfer it from +one man, or set of men, to another. It seems to me that the principle +is clear, and rests upon the assertion of the state's ownership of the +land; but it has often struck me to ask, Why is this application of +state rights limited to land required for these objects? why not apply +to the land at each side of the railway, the principle which governs +that under the railway itself? I consider the production of food the +primary trust upon the land, that rapid transit over it is a secondary +object; and as all experience shows that the division of land into small +estates leads to a more perfect system of tillage, I think it would be +of vast importance to the entire nation if all tenants who were, say, +five years in possession were made "promoters" under the Land Clauses +Act, and thus be enabled to purchase the fee of their holdings in the +same manner as a body of railway proprietors. It would be most useful +to the state to increase the number of tenants-in-fee--to re-create the +ancient FREEMEN, the LIBERI HOMINES--and I think it can be done without +requiring the aid either of a new principle or new machinery, by simply +placing the farmer-in-possession on the same footing as the railway +shareholder. I give at foot the draft of a bill I prepared in 1866 for +this object. + + [Footnote: A BILL TO ENCOURAGE THE OUTLAY OF MONEY UPON LAND + FOB AGRICULTURAL PURPOSES. + + Whereas it is expedient to encourage the occupiers of land + to expend money thereon, in building, drainage, and other + similar improvements; and whereas the existing laws do not + give the tenants or occupiers any sufficient security for + such outlay: Be it enacted by the Queen's Most Excellent + Majesty, by and with the advice and consent of the Lords + Spiritual and Temporal, and Commons in Parliament assembled, + and by the authority of the same: + + 1. That all outlay upon land for the purpose of rendering it + more productive, and all outlay upon buildings for the + accommodation of those engaged in tilling or working the + same, or for domestic animals of any sort, be, and the same + is hereby deemed to be, an outlay of a public nature. + + 2. That the clauses of "The Land Clauses Consolidation Act + 1845," "with respect to the purchase of lands by agreement," + and "with respect to the purchase and taking of lands + otherwise than by agreement," and "with respect to the + purchase money or compensation coming to parties having + limited interests, or prevented from treating or not making + title," shall be, and they are hereby incorporated with this + act. + + 3. That every tenant or occupier who has for the past five + years been in possession of any land, tenements, or + hereditaments, shall be considered "a promoter of the + undertaking within the meaning of the said recited act, and + shall be entitled to purchase the lands which he has so + occupied, 'either by agreement' 'or otherwise than by + agreement,' as provided in the said recited act." + + Then follow some details which it is unnecessary to recite here.] + +The 55th William I. secured to freemen the inheritance of their lands, +and they were not able to sell them until the act QUIA EMPTORES +of Edward I. was passed. The tendency of persons to spend the +representative value of their lands and sell them was checked by the +Mosaic law, which did not allow any man to despoil his children of their +inheritance. The possessor could only mortgage them until the year of +jubilee--the fiftieth year. In Switzerland and Belgium, where the nobles +did not entirely get rid of the FREEMEN, the lands continued to be held +in small estates. In Switzerland there are seventy-four proprietors for +every hundred families, and in Belgium the average size of the estate is +three and a half hectares--about eight acres. These small ownerships are +not detrimental to the state. On the contrary, they tend to its security +and well-being. I have treated on this subject in my work, "The Food +Supplies of Western Europe." These small estates existed in England at +the Norman Conquest, and their perpetual continuance was the object of +the law of William I., to which I have referred. Their disappearance was +due to the greed of the nobles during the reign of the Plantagenets, +and they were not replaced by the Tudors, who neglected to restore the +men-at-arms to the position they occupied under the laws of Edward the +Confessor and William I. + +The establishment of two estates in land; one the ownership, the +other the use, may be traced to the payment of rent, to the Roman +commonwealth, for the AGER PUBLICUS. Under the feudal system the rent +was of two classes--personal service or money; the latter was considered +base tenure. The legislation of the Tudors abolished the payment of rent +by personal service, and made all rent payable in money or in kind. The +land had been burdened with the sole support of the army. It was then +freed from this charge, and a tax was levied upon the community. Some +writers have sought to define RENT as the difference between fertile +lands and those that are so unproductive as barely to pay the cost of +tillage. This far-fetched idea is contradicted by the circumstance +that for centuries rent was paid by labor--the personal service of the +vassal--and it is now part of the annual produce of the soil inasmuch as +land will be unproductive without seed and labor, or being pastured by +tame animals, the representative of labor in taming and tending them. +Rent is usually the labor or the fruits of the labor of the occupant. +In some cases it is income derived from the labors of others. A broad +distinction exists between the rent of land, which is a portion of the +fruits or its equivalent in money, and that of improvements and houses, +which is an exchange of the labor of the occupant given as payment for +that employed in effecting improvements or erecting houses. The latter +described as messuages were valued in 1794 at SIX MILLIONS per annum; in +1814 they were nearly FIFETEEN MILLIONS; now they are valued at EIGHTY +MILLIONS. + + [Footnote--A Parliamentary return gives the following information + as to the value of lands and messuages in 1814 and 1874: + + 1814-15. 1873-74. + Lands, L34,330,463 L49,906,866 + Messuages, 14,895,130 80,726,502 + + The increase in the value of land is hardly equal to the + reduction in the value of gold, while the increase in + messuages shows the enormous expenditure of labor.] + +The increase represents a sum considerably more than double the national +debt of Great Britain, and under the system of leases the improvements +will pass from the industrial to the landlord class. + +It seems to me to be a mistake in legislation to encourage a system by +which these two funds merge into one, and that hands the income arising +from the expenditure of the working classes over to the tenants-in-fee +without an equivalent. This proceeds from a straining of the maxim that +"what is attached to the freehold belongs to the freehold," and was made +law when both Houses of Parliament were essentially landlord. That maxim +is only partially true: corn is as much attached to the freehold as +a tree; yet one is cut without hindrance and the other is prevented. +Potatoes, turnips, and such tubers, are only obtained by disturbing +the freehold. This maxim was at one time so strained that it applied to +fixtures, but recent legislation and modern discussions have limited the +rights of the landlord class and been favorable to the occupier, and I +look forward to such alterations in our laws as will secure to the man +who expends his labor or earnings in improvements, an estate IN PERPETUO +therein, as I think no length of user of that which is a man's own--his +labor or earnings--should hand over his representative improvements to +any other person. I agree with those writers who maintain that it is +prejudicial to the state that the rent fund should be enjoyed by +a comparatively small number of persons, and think it would +be advantageous to distribute it, by increasing the number of +tenants-in-fee. Natural laws forbid middlemen, who do nothing to make +the land productive, and yet subsist upon the labor of the farmer, and +receive as rent part of the produce of his toil. The land belongs to the +state, and should only be subject to taxes, either by personal service, +such as serving in the militia or yeomanry, or by money payments to the +state. + +Land does not represent CAPITAL, but the improvements upon it do. A man +does not purchase land. He buys the right of possession. In any transfer +of land there is no locking up of capital, because one man receives +exactly the amount the other expends. The individual may lock up +his funds, but the nation does not. Capital is not money. I quote a +definition from a previous work of mine, "The Case of Ireland," p. 176: + +"Capital stock properly signifies the means of subsistence for man, and +for the animals subservient to his use while engaged in the process of +production. The jurisconsults of former times expressed the idea by the +words RES FUNGIBILES, by which they meant consumable commodities, or +those things which are consumed in their use for the supply of man's +animal wants, as contradistinguished from unconsumable commodities, +which latter writers, by an extension of the term, in a figurative +sense, have called FIXED capital." + +All the money in the Bank of England will not make a single four-pound +loaf. Capital, as represented by consumable commodities, is the product +of labor applied to land, or the natural fruits of the land itself. The +land does not become either more or less productive by reason of the +transfer from one person to another; it is the withdrawal of labor that +affects its productiveness. + +WAGES are a portion of the value of the products of a joint combination +of employer and employed. The former advances from time to time as wages +to the latter, the estimated portion of the increase arising from their +combined operations to which he may be entitled. This may be either in +food or in money. The food of the world for one year is the yield at +harvest; it is the CAPITAL STOCK upon which mankind exist while engaged +in the operations for producing food, clothing, and other requisites +for the use of mankind, until nature again replenishes this store. Money +cannot produce food; it is useful in measuring the distribution of that +which already exists. + +The grants of the Crown were a fee or reward for service rendered; the +donee became tenant-in-fee; being a reward, it was restricted to a man +and his heirs-male or his heirs-general; in default of heirs-male or +heirs-general, the land reverted to the Crown, which was the donor. +A sale to third parties does not affect this phase of the question, +inasmuch as it is a principle of British law that no man can convey to +another a greater estate in land than that which he possesses himself; +and if the seller only held the land as tenant-in-fee for HIS OWN LIFE +and that of HIS heirs, he could not give a purchaser that which belonged +to the Crown, the REVERSION on default of heirs (see Statute DE DONIS, +13 Edward I., ANTE, p. 21). This right of the sovereign, or rather +of the people, has not been asserted to the full extent. Many noble +families have become extinct, yet the lands have not been claimed, as +they should have been, for the nation. + +I should not complete my review of the subject without referring to what +are called the LAWS OF PRIMOGENITURE. I fail to discover any such law. +On the contrary, I find that the descent of most of the land of England +is under the law of contract--by deed or bequest--and that it is only in +case of intestacy that the courts intervene to give it to the next heir. +This arises more from the construction the judges put upon the wishes of +the deceased, than upon positive enactment. When a man who has the right +of bequeathing his estate among his descendants does not exercise that +power, it is considered that he wishes the estate to go undivided to the +next heir. In America the converse takes place: a man can leave all his +land to one; and, if he fails to do so, it is divided. The laws relating +to contracts or settlements allow land to be settled by deed upon +the children of a living person, but it is more frequently upon the +grandchildren. They acquire the power of sale, which is by the contract +denied to their parents. A man gives to his grandchild that which he +denies to his son. This cumbrous process works disadvantageously, and it +might very properly be altered by restricting the power of settlement +or bequest to living persons, and not allowing it to extend to those who +are unborn. + +It is not a little curious to note how the ideas of mankind, after +having been diverted for centuries, return to their original channels. +The system of landholding in the most ancient races was COMMUNAL. That +word, and its derivative, COMMUNISM, has latterly had a bad odor. +Yet all the most important public works are communal. All joint-stock +companies, whether for banking, trading, or extensive works, are +communes. They hold property in common, and merge individual in general +rights. The possession of land by communes or companies is gradually +extending, and it is by no means improbable that the ideas which +governed very remote times may, like the communal joint-stock system, be +applied more extensively to landholding. + +It may not be unwise to review the grounds that we have been going over, +and to glance at the salient points. The ABORIGINAL inhabitants of +this island enjoyed the same rights as those in other countries, +of possessing themselves of land unowned and unoccupied. The ROMANS +conquered, and claimed all the rights the natives possessed, and levied +a tribute for the use of the lands. Upon the retirement of the Romans, +after an occupancy of about six hundred years, the lands reverted to +the aborigines, but they, being unable to defend themselves, invited +the SAXONS, the JUTES, and the ANGLES, who reduced them to serfdom, and +seized upon the land; they acted as if it belonged to the body of the +conquerors, it was allotted to individuals by the FOLC-GEMOT or assembly +of the people, and a race of LIBERI HOMINES or FREEMEN arose, who paid +no rent, but performed service to the state; during their sway of +about six hundred years the institutions changed, and the monarch, as +representing the people, claimed the right of granting the possession of +land seized for treason by BOC or charter. The NORMAN invasion found a +large body of the Saxon landholders in armed opposition to William, and +when they were defeated, he seized upon their land and gave it to his +followers, and then arose the term TERRA REGIS, "the land of the king," +instead of the term FOLC-LAND, "the land of the people;" but a large +portion of the realm remained in the hands of the LIBERI HOMINES or +FREEMEN. The Norman barons gave possession of part of their lands to +their followers, hence arose the vassals who paid rent to their lord by +personal service, while the FREEMEN held by service to the Crown. In +the wars of the PLANTAGENETS the FREEMEN seem to have disappeared, and +vassalage was substituted, the principal vassals being freeholders. The +descendants of the aborigines regained their freedom. The possession +of land was only given for life, and it was preceded by homage to the +Crown, or fealty to the lord, investiture following the ceremony. The +TUDOR sovereigns abolished livery and retainers, but did not secure the +rights of the men-at-arms or replace them in their position of FREEMEN. +The chief lords converted the payment of rent by service into payment +in money; this led to wholesale evictions, and necessitated the +establishment of the Poor Laws, The STUARTS surrendered the remaining +charges upon land: but on the death of one sovereign, and the expulsion +of another, the validity of patents from the Crown became doubtful. The +PRESENT system of landholding is the outcome of the Tudor ideas. But the +Crown has never abandoned the claim asserted in the statute of Edward +I., that all land belongs to the sovereign as representing the people, +and that individuals HOLD but do not OWN it; and upon this sound and +legal principle the state takes land from one and gives it to another, +compensating for the loss arising from being dispossessed. + +I have now concluded my brief sketch of the facts which seemed to me +most important in tracing the history of LANDHOLDING IN ENGLAND, and +laid before you not only the most vital changes, but also the principles +which underlay them; and I shall have failed in conveying the ideas of +my own mind if I have not shown you that at least from the Scandinavian +or ANGLO-SAXON invasion, the ownership of land rested either in the +people, or the Crown as representing the people: that individual +proprietorship of land is not only unknown, but repugnant to the +principles of the British Constitution; that the largest estate a +subject can have is tenancy-in-fee, and that it is a holding and not an +owning of the soil; and I cannot conceal from you the conviction which +has impressed my mind, after much study and some personal examination +of the state of proprietary occupants on the Continent, that the best +interests of the nation, both socially, morally, and materially, will be +promoted by a very large increase in the number of tenants-in-fee; which +can be attained by the extension of principles of legistration now in +active operation. All that is necessary is to extend the provisions +of the Land Clauses Act, which apply to railways and such objects, to +tenants in possession; to make them "promoters" under that act; to treat +their outlay for the improvement of the soil and the greater PRODUCTION +OF FOOD as a public outlay; and thus to restore to England a class which +corresponds with the Peasent Proprietors of the Continent--the FREEMAN +or LIBERI HOMINES of ANGLO-SAXON times, whose rights were solemnly +guaranteed by the 55th William I., and whose existence would be the +glory of the country and the safeguard of its institution. + + + + + + +End of the Project Gutenberg EBook of Landholding In England, by Joseph Fisher + +*** END OF THIS PROJECT GUTENBERG EBOOK LANDHOLDING IN ENGLAND *** + +***** This file should be named 3799.txt or 3799.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/7/9/3799/ + +Produced by Charles Franks, Robert Rowe and the Online +Distributed Proofreading Team + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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It forms the surest resource and the most solid +fund of riches and commerce for a nation that enjoys a happy +climate .... The cultivation of the soil deserves the attention of +the Government, not only on account of the invaluable advantages +that flow from it, but from its being an obligation imposed by +nature on mankind."--VATTEL. + + + + +INTRODUCTION. + + +This work is an expansion of a paper read at the meeting of the +Royal Historical Society in May, 1875, and will be published in the +volume of the Transactions of that body. But as it is an expensive +work, and only accessible to the Fellows of that Society, and as +the subject is one which is now engaging a good deal of public +consideration, I have thought it desirable to place it within the +reach of those who may not have access to the larger and more +expensive work. + +I am aware that much might be added to the information it contains, +and I possess materials which would have more than doubled its +size, but I have endeavored to seize upon the salient points, and +to express my views as concisely as possible. + +I have also preferred giving the exact words of important Acts of +Parliament to any description of their objects. + +If this little essay adds any information upon a subject of much +public interest, and contributes to the just settlement of a very +important question, I shall consider my labor has not been in vain. + +JOSEPH FISHER. + +WATERFORD, November 3, 1875. + +I do not propose to enter upon the system of landholding in +Scotland or Ireland, which appears to me to bear the stamp of the +Celtic origin of the people, and which was preserved in Ireland +long after it had disappeared in other European countries formerly +inhabited by the Celts. That ancient race may be regarded as the +original settlers of a large portion of the European continent, and +its land system possesses a remarkable affinity to that of the +Slavonic, the Hindoo, and even the New Zealand races. It was +originally Patriarchal, and then Tribal, and was communistic in its +character. + +I do not pretend to great originality in my views. My efforts have +been to collect the scattered rays of light, and to bring them to +bear upon one interesting topic. The present is the child of the +past. The ideas of bygone races affect the practices of living +people. We form but parts of a whole; we are influenced by those +who preceded us, and we shall influence those who come after us. +Men cannot disassociate themselves either from the past or the +future. + +In looking at this question there is, I think, a vast difference +which has not been sufficiently recognized. It is the broad +distinction between the system arising out of the original +occupation of land, and that proceeding out of the necessities of +conquest; perhaps I should add a third--the complex system +proceeding from an amalgamation, or from the existence of both +systems in the same nation. Some countries have been so repeatedly +swept over by the tide of conquest that but little of the +aboriginal ideas or systems have survived the flood. Others have +submitted to a change of governors and preserved their customary +laws; while in some there has been such a fusion of the two systems +that we cannot decide which of the ingredients was the older, +except by a process of analysis and a comparison of the several +products of the alembic with the recognized institutions of the +class of original or of invading peoples. + +Efforts have been made, and not with very great success, to define +the principle which governed the more ancient races with regard to +the possession of land. While unoccupied or unappropriated, it was +common to every settler. It existed for the use of the whole human +race. The process by which that which was common to all became the +possession of the individual has not been clearly stated. The +earlier settlers were either individuals, families, tribes, or +nations. In some cases they were nomadic, and used the natural +products without taking possession of the land; in others they +occupied districts differently defined. The individual was the unit +of the family, the patriarch of the tribe. The commune was formed +to afford mutual protection. Each sept or tribe in the early +enjoyment of the products of the district it selected was governed +by its own customary laws. The cohesion of these tribes into states +was a slow process; the adoption of a general system of government +still slower. The disintegration of the tribal system, and +dissolution of the commune, was not evolved out of the original +elements of the system itself, but was the effect of conquest; and, +as far as I can discover, the appropriation to individuals of land +which was common to all, was mainly brought about by conquest, and +was guided by impulse rather than regulated by principle. + +Mr. Locke thinks that an individual became sole owner of a part of +the common heritage by mixing his labor with the land, in fencing +it, making wells, or building; and he illustrates his position by +the appropriation of wild animals, which are common to all +sportsmen, but become the property of him who captures or kills +them. This acute thinker seems to me to have fallen into a mistake +by confounding land with labor. The improvements were the property +of the man who made them, but it by no means follows that the +expenditure of labor on land gave any greater right than to the +labor itself or its representative. + +It may not be out of place here to allude to the use of the word +property with reference to land; property--from proprium, my own-- +is something pertaining to man. I have a property in myself. I have +the right to be free. All that proceeds from myself, my thoughts, +my writings, my works, are property; but no man made land, and +therefore it is not property. This incorrect application of the +word is the more striking in England, where the largest title a man +can have is "tenancy in fee," and a tenant holds but does not own. + +Sir William Blackstone places the possession of land upon a +different principle. He says that, as society became formed, its +instinct was to preserve the peace; and as a man who had taken +possession of land could not be disturbed without using force, each +man continued to enjoy the use of that which he had taken out of +the common stock; but, he adds, that right only lasted as long as +the man lived. Death put him out of possession, and he could not +give to another that which he ceased to possess himself. + +Vattel (book i., chap, vii.) tells us that "the whole earth is +destined to feed its inhabitants; but this it would be incapable of +doing if it were uncultivated. Every nation is then obliged by the +law of nature to cultivate the land that has fallen to its share, +and it has no right to enlarge its boundaries or have recourse to +the assistance of other nations, but in proportion as the land in +its possession is incapable of furnishing it with necessaries." He +adds (chap. xx.), "When a nation in a body takes possession of a +country, everything that is not divided among its members remains +common to the whole nation, and is called public property." + +An ancient Irish tract, which forms part of the Senchus Mor, and is +supposed to be a portion of the Brehon code, and traceable to the +time of St. Patrick, speaks of land in a poetically symbolic, but +actually realistic manner, and says, "Land is perpetual man." All +the ingredients of our physical frame come from the soil. The food +we require and enjoy, the clothing which enwraps us, the fire which +warms us, all save the vital spark that constitutes life, is of the +land, hence it is "perpetual man." Selden ("Titles of Honor," p. +27), when treating of the title "King of Kings," refers to the +eastern custom of homage, which consisted not in offering the +person, but the elements which composed the person, EARTH and +WATER--"the perpetual man" of the Brehons--to the conqueror. He +says: + +"So that both titles, those of King of Kings and Great King, were +common to those emperors of the two first empires; as also (if we +believe the story of Judith) that ceremonies of receiving an +acknowledgment of regal supremacy (which, by the way, I note here, +because it was as homage received by kings in that time from such +princes or people as should acknowledge themselves under their +subjection) by acceptance upon their demand of EARTH and WATER. +This demand is often spoken of as used by the Persian, and a +special example of it is in Darius' letters to Induthyr, King of +the Scythians, when he first invites him to the field; but if he +would not, then bringing to your sovereign as gifts earth and +water, come to a parley. And one of Xerxes' ambassadors that came +to demand earth and water from the state of Lacedaemon, to satisfy +him, was thrust into a well and earth cast upon him." + +The earlier races seem to me, either by reasoning or by instinct, +to have arrived at the conclusion that every man was, in right of +his being, entitled to food; that food was a product of the land, +and therefore every man was entitled to the possession of land, +otherwise his life depended upon the will of another. The Romans +acted on a different principle, which was "the spoil to the +victors." He who could not defend and retain his possessions became +the slave of the conqueror, all the rights of the vanquished passed +to the victor, who took and enjoyed as ample rights to land as +those naturally possessed by the aborigines. + +The system of landholding varies in different countries, and we +cannot discover any idea of abstract right underlying the various +differing systems; they are the outcome of law, the will of the +sovereign power, which is liable to change with circumstances. The +word LAW appears to be used to express two distinct sentiments; +one, the will of the sovereign power, which being accompanied with +a penalty, bears on its face the idea that it may be broken by the +individual who pays the penalty: "Thou shalt not eat of the fruit +of the tree, for on the day thou eatest thereof thou shalt die," +was a law. All laws, whether emanating from an absolute monarch or +from the representatives of the majority of a state, are mere +expressions of the will of the sovereign power, which may be +exacted by force. The second use of the word LAW is a record of our +experience--e.g., we see the tides ebb and flow, and conclude it is +done in obedience to the will of a sovereign power; but the word in +that sense does not imply any violation or any punishment. A +distinction must also be drawn between laws and codes; the former +existed before the latter. The lex non scripta prevailed before +letters were invented. Every command of the Decalogue was issued, +and punishment followed for its breach, before the existence of the +engraved tables. The Brehon code, the Justinian code, the Draconian +code, were compilations of existing laws; and the same may be said +of the common or customary law of England, of France, and of +Germany. + +I am aware that recent analytical writers have sought to associate +LAW with FORCE, and to hold that law is a command, and must have +behind it sufficient force to compel submission. These writers find +at the outset of their examination, that customary law, the "Lex +non scripta," existed before force, and that the nomination to +sovereign power was the outcome of the more ancient customary law. +These laws appear based upon the idea of common good, and to have +been supported by the "posse comitatus" before standing armies or +state constabularies were formed. Vattel says (book i., chap. ii.), +"It is evident that men form a political society, and submit to +laws solely for their own advantage and safety. The sovereign +authority is then established only for the common good of all the +citizens. The sovereign thus clothed with the public authority, +with everything that constitutes the moral personality of the +nation, of course becomes bound by the moral obligations of that +nation and invested with its rights." It appears evident, that +customary law was the will of small communities, when they were +sovereign; that the cohesion of such communities was a confirmation +of such customs of each, that the election of a monarch or a +parliament was a recognition of these customs, and that the moral +and material FORCE or power of the sovereign was the outcome of +existing laws, and a confirmation thereof. The application of the +united force of the nation could be rightfully directed to the +requirements of ancient, though unwritten customary law, and it +could only be displaced by legislation, in which those concerned +took part. + +The duty of the sovereign (which in the United Kingdom means the +Crown and the two branches of the legislature) with regard to land, +is thus described by Vattel: + +"Of all arts, tillage or agriculture is doubtless the most useful +and necessary, as being the source whence the nation derives its +subsistence. The cultivation of the soil causes it to produce an +infinite increase. It forms the surest resource, and the most solid +fund of riches and commerce for a nation that enjoys a happy +climate. The sovereign ought to neglect no means of rendering the +land under his jurisdiction as well cultivated as possible.... +Notwithstanding the introduction of private property among the +citizens, the nation has still the right to take the most effectual +measures to cause the aggregate soil of the country to produce the +greatest and most advantageous revenue possible. The cultivation of +the soil deserves the attention of the Government, not only on +account of the invaluable advantages that flow from it, but from +its being an obligation imposed by nature on mankind." + +Sir Henry Maine thinks that there are traces in England of the +commune or MARK system in the village communities which are +believed to have existed, but these traces are very faint. The +subsequent changes were inherent in, and developed by, the various +conquests that swept over England; even that ancient class of +holdings called "Borough English," are a development of a war-like +system, under which each son, as he came to manhood, entered upon +the wars, and left the patrimonial lands to the youngest son. The +system of gavel-kind which prevailed in the kingdom of Kent, +survived the accession of William of Normandy, and was partially +effaced in the reign of Henry VII. It was not the aboriginal or +communistic system, but one of its many successors. + +The various systems may have run one into the other, but I think +there are sufficiently distinct features to place them in the +following order: + +1st. The Aboriginal. + +2d. The Roman, Population about 1,500,000. + +3d. The Scandinavian under the ANGLO-SAXON and Danish kings--A.D. +450 to A.D. 1066. The population in 1066 was 2,150,000. + +4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the +latter year was 3,350,000. + +5th. The Plantagenet, from 1154 to 1485; in the latter the +population was 4,000,000. + +6th. The Tudor, 1485 to 1603, when the population was 5,000,000. + +7th. The Stuarts, 1603 to 1714, the population having risen to +5,750,000. + +8th. The Present, from 1714. Down to 1820 the soil supported the +population; now about one half lives upon food produced in other +countries. In 1874 the population was 23,648,607. + +Each of these periods has its own characteristic, but as I must +compress my remarks, you must excuse my passing rapidly from one to +the other. + + + + + +I. THE ABORIGINES. + + +The aboriginal period is wrapped in darkness, and I cannot with +certainty say whether the system that prevailed was Celtic and +Tribal. An old French customary, in a MS. treating upon the +antiquity of tenures, says: "The first English king divided the +land into four parts. He gave one part to the ARCH FLAMENS to pray +for him and his posterity. A second part he gave to the earls and +nobility, to do him knight's service. A third part he divided among +husbandmen, to hold of him in socage. The fourth he gave to +mechanical persons to hold in burgage." The terms used apply to a +much more recent period and more modern ideas. + +Caesar tells us "that the island of Britain abounds in cattle, and +the greatest part of those within the country never sow their land, +but live on flesh and milk. The sea-coasts are inhabited by +colonies from Belgium, which, having established themselves in +Britain, began to cultivate the soil." + +Diodorus Siculus says, "The Britons, when they have reaped their +corn, by cutting the ears from the stubble, lay them up for +preservation in subterranean caves or granaries. From thence, they +say, in very ancient times, they used to take a certain quantity of +ears out every day, and having dried and bruised the grains, made a +kind of food for their immediate use." + +Jeffrey of Monmouth relates that one of the laws of Dunwalls +Molnutus, who is said to have reigned B.C. 500, enacted that the +ploughs of the husbandmen, as well as the temples of the gods, +should be sanctuaries to such criminals as fled to them for +protection. + +Tacitus states that the Britons were not a free people, but were +under subjection to many different kings. + +Dr. Henry, quoting Tacitus, says, "In the ancient German and +British nation the whole riches of the people consisted in their +flocks and herds; the laws of succession were few and simple: a +man's cattle, at death, were equally divided among his sons; or, if +he had no sons, his daughters; or if he had no children, among his +nearest relations. These nations seem to have had no idea of the +rights of primogeniture, or that the eldest son had any title to a +larger share of his father's effects than the youngest." + +The population of England was scanty, and did not probably exceed a +million of inhabitants. They were split up into a vast number of +petty chieftainries or kingdoms; there was no cohesion, no means of +communication between them; there was no sovereign power which +could call out and combine the whole strength of the nation. No +single chieftain could oppose to the Romans a greater force than +that of one of its legions, and when a footing was obtained in the +island, the war became one of detail; it was a provincial rather +that a national contest. The brave, though untrained and ill- +disciplined warriors, fell before the Romans, just as the Red Man +of North America was vanquished by the English settlers. + + + + + +II. THE ROMAN. + + +The Romans acted with regard to all conquered nations upon the +maxim, "To the victors the spoils." Britain was no exception. The +Romans were the first to discover or create an ESTATE OF USES in +land, as distinct from an estate of possession. The more ancient +nations, the Jews and the Greeks, never recognized THE ESTATE OF +USES, though there is some indication of it in the relation +established by Joseph in Egypt, when, during the years of famine, +he purchased for Pharaoh the lands of the people. The Romans having +seized upon lands in Italy belonging to conquered nations, +considered them public lands, and rented them to the soldiery, thus +retaining for the state the estate in the lands, but giving the +occupier an estate of uses. The rent of these public lands was +fixed at one tenth of the produce, and this was termed USUFRUCT-- +the use of the fruits. + +The British chiefs, who submitted to the Romans, were subjected to +a tribute or rent in corn; it varied, according to circumstances, +from one fifth to one twentieth of the produce. The grower was +bound to deliver it at the prescribed places. This was felt to be a +great hardship, as they were often obliged to carry the grain great +distances, or pay a bribe to be excused. This oppressive law was +altered by Julius Agricola. + +The Romans patronized agriculture--Cato says, "When the Romans +designed to bestow the highest praise on a good man, they used to +say he understood agriculture well, and is an excellent husbandman, +for this was esteemed the greatest and most honorable character." +Their system produced a great alteration in Britain, and converted +it into the most plentiful province of the empire; it produced +sufficient corn for its own inhabitants, for the Roman legions, and +also afforded a great surplus, which was sent up the Rhine. The +Emperor Julian built new granaries in Germany, in which he stored +the corn brought from Britain. Agriculture had greatly improved in +England under the Romans. + +The Romans do not appear to have established in England any +military tenures of land, such as those they created along the +Danube and the Rhine; nor do they appear to have taken possession +of the land; the tax they imposed upon it, though paid in kind, was +more of the nature of a tribute than a rent. Though some of the +best of the soldiers in the Roman legions were Britons, yet their +rule completely enervated the aboriginal inhabitants--they were +left without leaders, without cohesion. Their land was held by +permission of the conquerors. The wall erected at so much labor in +the north of England proved a less effectual barrier against the +incursions of the Picts and Scots than the living barrier of armed +men which, at a later period, successfully repelled their +invasions. The Roman rule affords another example that material +prosperity cannot secure the liberties of a people, that they must +be armed and prepared to repel by force any aggression upon their +liberty or their estates. + +"Who will be free, themselves must strike the blow." + +The prosperous "Britons," who were left by the Romans in possession +of the island, were but feeble representatives of those who, under +Caractacus and Boadicea, did not shrink from combat with the +legions of Caesar. Uninured to arms, and accustomed to obedience, +they looked for a fresh master, and sunk into servitude and +serfdom, from which they never emerged. Yet under the Romans they +had thriven and increased in material wealth; the island abounded +in numerous flocks and herds; and agriculture, which was encouraged +by the Romans, flourished. This wealth was by one of the +temptations to the invaders, who seized not only upon the movable +wealth of the natives, but also upon the land, and divided it among +themselves. + +The warlike portion of the aboriginal inhabitants appear to have +joined the Cymri and retired westward. Their system of landholding +was non-feudal, inasmuch as each man's land was divided among all +his sons. One of the laws of Hoel Dha, King of Wales in the tenth +century, decreed "that the youngest son shall have an equal share +of the estate with the eldest son, and that when the brothers have +divided their father's estate among them, the youngest son shall +have the best house with all the office houses; the implements of +husbandry, his father's kettle, his axe for cutting wood, and his +knife; these three last things the father cannot give away by gift, +nor leave by his last will to any but his youngest son, and if they +are pledged they shall be redeemed." It may not be out of place +here to say that this custom continued to exist in Wales; and on +its conquest Edward I. ordained, "Whereas the custom is otherwise +in Wales than England concerning succession to an inheritance, +inasmuch as the inheritance is partible among the heirs-male, and +from time whereof the memory of man is not to the contrary hath +been partible, Our Lord the King will not have such custom +abrogated, but willeth that inheritance shall remain partible among +like heirs as it was wont to be, with this exception that bastards +shall from henceforth not inherit, and also have portions with the +lawful heirs; and if it shall happen that any inheritance should +hereafter, upon failure of heirs-male, descend to females, the +lawful heirs of their ancestors last served thereof. We will, of +our especial grace, that the same women shall have their portions +thereof, although this be contrary to the custom of Wales before +used." + +The land system of Wales, so recognized and regulated by Edward I., +remained unchanged until the reign of the first Tudor monarch. Its +existence raises the presumption that the aboriginal system of +landholding in England gave each son a share of his father's land, +and if so, it did not correspond with the Germanic system described +by Caesar, nor with the tribal system of the Celts in Ireland, nor +with the feudal system subsequently introduced. + +The polity of the Romans, which endured in Gaul, Spain, and Italy, +and tinged the laws and usages of these countries after they had +been occupied by the Goths, totally disappeared in England; and +even Christianity, which partially prevailed under the Romans, was +submerged beneath the flood of invasion. Save the material evidence +of the footprints of "the masters of the world" in the Roman roads, +Roman wall, and some other structures, there is no trace of the +Romans in England. Their polity, laws, and language alike vanished, +and did not reappear for centuries, when their laws and language +were reimported. + +I should not be disposed to estimate the population of England and +Wales, at the retirement of the Romans, at more than 1,500,000. +They were like a flock of sheep without masters, and, deprived of +the watch-dogs which over-awed and protected them, fell an easy +prey to the invaders. + + + + + +III. THE SCANDINAVIANS. + + +The Roman legions and the outlying semi-military settlements along +the Rhine and the Danube, forming a cordon reaching from the German +Ocean to the Black Sea, kept back the tide of barbarians, but the +volume of force accumulated behind the barrier, and at length it +poured in an overwhelming and destructive tide over the fair and +fertile provinces whose weak and effeminate people offered but a +feeble resistance to the robust armies of the north. The Romans, +under the instruction of Caesar and Tacitus, had a faint idea of +the usages of the people inhabiting the verge that lay around the +Roman dominions, but they had no knowledge of the influences that +prevailed in "the womb of nations," as Central Europe appeared to +the Latins, who saw emerging therefrom hosts of warriors, bearing +with them their wives, their children, and their portable effects, +determined to win a settlement amid the fertile regions owned and +improved by the Romans. + +These incursions were not colonization in the sense in which Rome +understood it; they were the migrations of a people, and were as +full, as complete, and as extensive as the Israelitish invasion of +Canaan--they were more destructive of property, but less fatal to +life. These migratory hosts left a desert behind them, and they +either gained a settlement or perished. The Roman colonies +preserved their connection with the parent stem, and invoked aid +when in need; but the barbarian hosts had no home, no reserves. +Other races, moving with similar intent, settled on the land they +had vacated. These brought their own social arrangements, and it is +very difficult to connect the land system established by the +aborigines with the system which, after a lapse of some hundreds of +years, was found to prevail in another tribe or nation which had +occupied the region that had been vacated. + +Neither Caesar nor Tacitus gives us any idea of the habits or +usages of the people who lived north of the Belgae. They had no +notion of Scandinavia nor of Sclavonia. The Walhalla of the north, +with its terrific deities, was unknown to them; and I am disposed +to think that we shall look in vain among the customs of the +Teutons for the basis from whence came the polity established in +England by the invaders of the fifth century. The ANGLO-SAXONs came +from a region north of the Elbe, which we call Schleswig--Holstein. +They were kindred to the Norwegians and the Danes, and of the +family of the sea robbers; they were not Teutons, for the Teutons +were not and are not sailors. The Belgae colonized part of the +coast--i.e., the settlers maintained a connection with the +mainland; but the Angles, the Saxons, and the Jutes did not +colonize, they migrated; they left no trace of their occupancy in +the lands they vacated. Each separate invasion was the settlement +of a district; each leader aspired to sovereignty, and was supreme +in his own domains; each claimed descent from Woden, and, like +Romulus or Alexander, sought affinity with the gods. Each member of +the Heptarchy was independent of, and owed no allegiance to, the +other members; and marriage or conquest united them ultimately into +one kingdom. + +The primary institutions were moulded by time and circumstance, and +the state of things in the eleventh century was as different from +that of the fifth as those of our own time differ from the rule of +Richard II. Yet one was as much an outgrowth of its predecessor as +the other. + +Attempts have been made, with considerable ingenuity, to connect +races with each other by peculiar characteristics, but human +society has the same necessities, and we find great similarity in +various divisions of society. At all times, and in all nations, +society resolved itself into the upper, middle, and lower classes. +Rome had its Nobles, Plebeians, and Slaves; Germany its Edhilingi, +Frilingi, and Lazzi; England its Eaorls, Thanes, and Ceorls. It +would be equally cogent to argue that, because Rome had three +classes and England had three classes, the latter was derived from +the former, as to conclude that, because Germany had three classes, +therefore English institutions were Teutonic. If the invasion of +the fifth century were Teutonic we should look for similar +nomenclature, but there is as great a dissimilarity between the +English and German names of the classes as between the former and +those of Rome. + +The Germanic MARK system has no counterpart in the land system +introduced into England by the ANGLO-SAXONs. If village communities +existed in England, it must have been before the invasion of the +Romans. The German system, as described by Caesar, was suited to +nomads--to races on the wing, who gave to no individual possession +for more than a year, that there might be no home ties. The mark +system is of a later date, and was evidently the arrangement of +other races who permanently settled themselves upon the lands +vacated by the older nations. And I may suggest whether, as these +lands were originally inhabited by the Celts, the conquerors did +not adopt the system of the conquered. + +Even in the nomenclature of FEUDALISM, introduced into England in +the fifth century, we are driven back to Scandinavia for an +explanation. The word FEUDAL as applied to land has a Norwegian +origin, from which country came Rollo, the progenitor of William +the Norman. Pontoppidan ("History of Norway," p.290) says "The +ODHALL, right of Norway, and the UDALL, right of Finland, came from +the words 'Odh,' which signifies PROPRIETORS, and 'all,' which +means TOTUM. A transposition of these syllables makes ALL ODH, or +ALLODIUM, which means absolute property. FEE, which means stipend +or pay, united with OTH, thus forming FEE-OTH or FEODUM, denoting +stipendiary property. "Wacterus states that the word ALLODE, +ALLODIUM, which applies to land in Germany, is composed of AN and +LOT--i.e., land obtained by lot. + +I therefore venture the opinion that the settlement of England in +the fifth and sixth centuries was not Teutonic or Germanic, but +SCANDINAVIAN. + +The lands won by the swords of all were the common property of all; +they were the lands of the people, FOLC-LAND; they were distributed +by lot at the FOLC-GEMOT; they were ODH-ALL lands; they were not +held of any superior nor was there any service savethat imposed by +the common danger. The chieftains were elected and obeyed, because +they represented the entire people. Hereditary right seems to have +been unknown. The essence of feudalism WAS A LIFE ESTATE, the land +reverted either to the sovereign or to the people upon the death of +the occupant. At a later period the monarch claimed the power of +confiscating land, and of giving it away by charter or deed; and +hence arose the distinction between FOLC-LAND and BOC-LAND (the +land of the book or charter), a distinction somewhat similar to the +FREEHOLD and COPYHOLD tenures of the present day. King Alfred the +Great bequeathed "his BOC-LAND to his nearest relative; and if any +of them have children it is more agreeable to me that it go to +those born on the male side." He adds, "My grandfather bequeathed +his land on the spear side, not on the spindle side; therefore if I +have given what he acquired to any on the female side, let my +kinsman make compensation." + +The several ranks were thus defined by Athelstane: + +"1st. It was whilom in the laws of the English that the people went +by ranks, and these were the counsellors of the nation, of worship +worthy each according to his condition--'eorl,' 'ceorl,' 'thegur,' +and 'theodia.' + +"2d. If a ceorl thrived, so that he had fully five hides (600 +acres) of land, church and kitchen, bell-house and back gatescal, +and special duty in the king's hall, then he was thenceforth of +thane-right worthy. + +"3d. And if a thane thrived so that he served the king, and on his +summons rode among his household, if he then had a thane who him +followed, who to the king utward five hides, had, and in the king's +hall served his lord, and thence, with his errand, went to the +king, he might thenceforth, with his fore oath, his lord represent +at various needs, and his and his plant lawfully conduct +wheresoever he ought. + +"4th. And he who so prosperous a vicegerent had not, swore for +himself according to his right or it forfeited. + +"5th. And if a 'thane' thrived so that he became an eorl, then was +he thenceforth of eorl-right worthy. + +"6th. And if a merchant thrived so that he fared thrice over the +wide sea by his own means (or vessels), then was he thenceforth of +thane-right worthy." + +The oath of fealty, as prescribed by the law of Edward and Guthrum, +was very similar to that used at a later period, and ran thus: + +"Thus shall a man swear fealty: By the Lord, before whom this relic +is holy, I will be faithful and true, and love all that he loves, +and shun all that he shuns, according to God's law, and according +to the world's principles, and never by will nor by force, by word +nor by work, do aught of what is loathful to him, on condition that +he me keep, as I am willing to deserve, and all that fulfil, that +our agreement was, when I to him submitted and chose his will." + +The Odh-all (noble) land was divided into two classes: the in- +lands, which were farmed by slaves under Bailiffs, and the out- +lands, which were let to ceorls either for one year or for a term. +The rents were usually paid in kind, and were a fixed proportion of +the produce. Ina, King of the West Saxons, fixed the rent of ten +hides (1200 acres), in the beginning of the eighth century, as +follows: 10 casks honey, 12 casks strong ale, 30 casks small ale, +300 loaves bread, 2 oxen, 10 wedders, 10 geese, 20 hens, 10 +chickens, 10 cheeses, 1 cask butter, 5 salmon, 20 lbs. forage, and +100 eels. In the reign of Edgar the Peaceable (tenth century), land +was sold for about four shillings of the then currency per acre. +The Abbot of Ely bought an estate about this time, which was paid +for at the rate of four sheep or one horse for each acre. + +The FREEMEN (LIBERI HOMINES) were a very numerous class, and all +were trained in the use of arms. Their FOLC-LAND was held under the +penalty of forfeiture if they did not take the field, whenever +required for the defence of the country. In addition, a tax, called +Danegeld, was levied at a rate varying from two shillings to seven +shillings per hide of land (120 acres); and in 1008, each owner of +a large estate, 310 hides, was called on to furnish a ship for the +navy. + +Selden ("Laws and Government of England," p. 34) thus describes the +FREEMEN among the Saxons, previous to the Conquest: + +"The next and most considerable degree of all the people is that of +the FREEMEN, anciently called Frilingi, [Footnote: This is a +Teutonic, not an ANGLO-SAXON term; the ANGLO-SAXON word is Thane.] +or Free-born, or such as are born free from all yoke of arbitrary +power, and from all law of compulsion, other than what is made by +their voluntary consent, for all FREEMEN have votes in the making +and executing of the general laws of the kingdom. In the first, +they differed from the Gauls, of whom it is noted that the commons +are never called to council, nor are much better than servants. In +the second, they differ from many free people, and are a degree +more excellent, being adjoined to the lords in judicature, both by +advice and power (consilium et authoritates adsunt}, and therefore +those that were elected to that work were called Comites ex plebe, +and made one rank of FREEMEN for wisdom superior to the rest. +Another degree of these were beholden for their riches, and were +called Custodes Pagani, an honorable title belonging to military +service, and these were such as had obtained an estate of such +value as that their ordinary arms were a helmet, a coat of mail, +and a gilt sword. The rest of the FREEMEN were contented with the +name of Ceorls, and had as sure a title to their own liberties as +the Custodes Pagani or the country gentlemen had." + +Land was liable to be seized upon for treason and forfeited; but +even after the monarchs had assumed the functions of the FOLC- +GEMOT, they were not allowed to give land away without the approval +of the great men; charters were consented to and witnessed in +council. "There is scarcely a charter extant," says Chief Baron +Gilbert, "that is not proof of this right." The grant of Baldred, +King of Kent, of the manor of Malling, in Sussex, was annulled +because it was given without the consent of the council. The +subsequent gift thereof, by Egbert and Athelwolf, was made with the +concurrence and assent of the great men. The kings' charters of +escheated lands, to which they had succeeded by a personal right, +usually declared "that it might be known that what they gave was +their own." + +Discussions have at various times taken place upon the question, +"Was the land-system of this period FEUDAL?" It engaged the +attention of the Irish Court of King's Bench, in the reign of +Charles I., and was raised in this way: James I. had issued "a +commission of defective titles." Any Irish owner, upon surrendering +his land to the king, got a patent which reconvened it on him. +Wentworth (Lord Stafford) wished to SETTLE Connaught, as Ulster had +been SETTLED in the preceding reign, and, to accomplish it, tried +to break the titles granted under "the commission of defective +titles." Lord Dillon's case, which is still quoted as an authority, +was tried. The plea for the Crown alleged that the honor of the +monarch stood before his profit, and as the commissioners were only +authorized to issue patents to hold in capite, whereas they had +given title "to hold in capite, by knights' service out of Dublin +Castle," the grant was bad. In the course of the argument, the +existence of feudal tenures, before the landing of William of +Normandy, was discussed, and Sir Henry Spelman's views, as +expressed in the Glossary, were considered. The Court unanimously +decided that feudalism existed in England under the ANGLO-SAXONs, +and it affirmed that Sir Henry Spelman was wrong. This decision led +Sir Henry Spelman to write his "Treatise on Feuds," which was +published after his death, in which he reasserted the opinion that +feudalism was introduced into England at the Norman invasion. This +decision must, however, be accepted with a limitation; I think +there was no separate order of NOBILITY under the ANGLO-SAXON rule. +The king had his councillors, but there appears to have been no +order between him and the FOLC-GEMOT. The Earls and the Thanes met +with the people, but did not form a separate body. The Thanes were +country gentleman, not senators. The outcome of the heptarchy was +the Earls or Ealdermen; this was the only order of nobility among +the Saxons; they corresponded to the position of lieutenants of +counties, and were appointed for life. In 1045 there were nine such +officers; in 1065 there were but six. Harold's earldom, at the +former date, comprised Norfolk, Suffolk, Essex, and Middlesex; and +Godwin's took in the whole south coast from Sandwich to the Land's +End, and included Kent, Sussex, Hampshire, Wilts, Devonshire, and +Cornwall. Upon the death of Godwin, Harold resigned his earldom, +and took that of Godwin, the bounds being slightly varied. Harold +retained his earldom after he became king, but on his death it was +seized upon by the Conqueror, and divided among his followers. + +The Crown relied upon the LIBERI HOMINES or FREEMEN. The country +was not studded with castles filled with armed men. The HOUSE of +the Thane was an unfortified structure, and while the laws relating +to land were, in my view, essentially FEUDAL, the government was +different from that to which we apply the term FEUDALISM, which +appears to imply baronial castles, armed men, and an oppressed +people. + +I venture to suggest to some modern writers that further inquiry +will show them that FOLC-LAND was not confined to commonages, or +unallotted portions, but that at the beginning it comprised all the +land of the kingdom, and that the occupant did not enjoy it as +owner-in-severalty; he had a good title against his fellow +subjects, but he held under the FOLC-GEMOT, and was subject to +conditions. The consolidation of the sovereignty, the extension of +laws of forfeiture, the assumption by the kings of the rights of +the popular assemblies, all tended to the formation of a second set +of titles, and BOC-LAND became an object of ambition. The same +individual appears to have held land by both titles, and to have +had greater powers over the latter than over the former. + +Many of those who have written on the subject seem to me to have +failed to grasp either the OBJECT or the GENIUS of FEUDALISM. It +was the device of conquerors to maintain their possessions, and is +not to be found among nations, the original occupiers of the land, +nor in the conquests of states which maintained standing armies. +The invading hosts elected their chieftain, they and he had only a +life use of the conquests. Upon the death of one leader another was +elected, so upon the death of the allottee of a piece of land it +reverted to the state. The GENIUS of FEUDALISM was life ownership +and non-partition. Hence the oath of fealty was a personal +obligation, and investiture was needful before the new feudee took +possession. The state, as represented by the king or chieftain, +while allowing the claim of the family, exercised its right to +select the individual. All the lands were considered BENEFICIA, a +word which now means a charge upon land, to compensate for duties +rendered to the state. Under this system, the feudatory was a +commander, his residence a barrack, his tenants soldiers; it was +his duty to keep down the aborigines, and to prevent invasion. He +could neither sell, give, nor bequeath his land. He received the +surplus revenue as payment for personal service, and thus enjoyed +his BENEFICE. Judged in this way, I think the feudal system existed +before the Norman Conquest. Slavery and serfdom undoubtedly +prevailed. The country prospered under the Scandinavians; and, from +the great abundance of corn, William of Poitiers calls England "the +store-house of Ceres." + + + + + +IV. THE NORMANS. + + +The invasion of William of Normandy led to results which have been +represented by some writers as having been the most momentous in +English history. I do not wish in any way to depreciate their +views, but it seems to me not to have been so disastrous to +existing institutions, as the Scandinavian invasion, which +completely submerged all former usages. No trace of Roman +occupation survived the advent of the ANGLO-SAXONs; the population +was reduced to and remained in the position of serfs, whereas the +Norman invasion preserved the existing institutions of the nation, +and subsequent changes were an outgrowth thereof. + +When Edward the Confessor, the last descendant of Cedric, was on +his deathbed, he declared Harold to be his successor, but William +of Normandy claimed the throne under a previous will of the same +monarch. He asked for the assistance of his own nobles and people +in the enterprise, but they refused at first, on the ground that +their feudal compact only required them to join in the defence of +their country, and did not coerce them into affording him aid in a +completely new enterprise; and it was only by promising to +compensate them out of the spoils that he could secure their co- +operation. A list of the number of ships supplied by each Norman +chieftain appears in Lord Lyttleton's "History of Henry III." vol. +i., appendix. + +I need hardly remind you that the settlers in Normandy were from +Norway, or that they had been expelled from their native land in +consequence of their efforts to subvert its institutions, and to +make the descent of land hereditary, instead of being divisible +among all the sons of the former owner. Nor need I relate how they +won and held the fair provinces of northern France--whether as a +fief of the French Crown or not, is an open question. But I should +wish you to bear in mind their affinity to the ANGLO-SAXONs, to the +Danes, and to the Norwegians, the family of Sea Robbers, whose +ravages extended along the coasts of Europe as far south as +Gibraltar, and, as some allege, along the Mediterranean. Some +questions have been raised as to the means of transport of the +Saxons, the Jutes, and the Angles, but they were fully as extensive +as those by which Rollo invaded France or William invaded England. + +William strengthened his claim to the throne by his military +success, and by a form of election, for which there were many +previous precedents. Those who called upon him to ascend it alleged +"that they had always been ruled by legal power, and desired to +follow in that respect the example of their ancestors, and they +knew of no one more worthy than himself to hold the reins of +government." + +His alleged title to the crown, sanctioned by success and confirmed +by election, enabled him, in conformity with existing institutions, +to seize upon the lands of Harold and his adherents, and to grant +them as rewards to his followers. Such confiscation and gifts were +entirely in accord with existing usages, and the great alteration +which took place in the principal fiefs was more a change of +persons than of law. A large body of the aboriginal people had +been, and continued to be, serfs or villeins; while the mass of the +FREEMEN (LIBERI HOMINES) remained in possession of their holdings. + +It may not be out of place here to say a few words about this +important class, which is in reality the backbone of the British +constitution; it was the mainstay of the ANGLO-SAXON monarchy; it +lost its influence during the civil wars of the Plantagenets, but +reasserted its power under Cromwell. Dr. Robertson thus draws the +line between them and the vassals: + +"In the same manner Liber homo is commonly opposed to Vassus or +Vassalus, the former denoting an allodial proprietor, the latter +one who held of a superior. These FREEMEN were under an obligation +to serve the state, and this duty was considered so sacred that +FREEMEN were prohibited from entering into holy orders, unless they +obtained the consent of the sovereign." + +De Lolme, chap. i., sec. 5, says: + +"The Liber homo, or FREEMAN, has existed in this country from the +earliest periods, as well as of authentic as of traditionary +history, entitled to that station in society as one of his +constitutional rights, as being descended from free parents in +contradistinction to 'villains,' which should be borne in +remembrance, because the term 'FREEMAN' has been, in modern times, +perverted from its constitutional signification without any +statutable authority." The LIBERI HOMINES are so described in the +Doomsday Book. They were the only men of honor, faith, trust, and +reputation in the kingdom; and from among such of these as were not +barons, the knights did choose jurymen, served on juries +themselves, bare offices, and dispatched country business. Many of +the LIBERI HOMINES held of the king in capite, and several were +freeholders of other persons in military service. Their rights were +recognized and guarded by the 55th William I.; [Footnote: "LV.--De +Chartilari seu Feudorum jure et Ingenuorum immunitate. Volumus +etiam ac firmiter praecipimus et concedimus ut omnes LIBERI HOMINES +totius Monarchiae regni nostri praedicti habeant et teneant terras +suas et possessiones suas bene et in pace, liberi ab omni, +exactione iniusta et ab omni Tallagio: Ita quod nihil ab eis +exigatur vel capiatur nisi servicium suum liberum quod de iure +nobis facere debent et facere tenentur et prout statutum est eis et +illis a nobis datum et concessum iure haereditario imperpetuum per +commune consilium totius regni nostri praeicti."] it is entitled: + +"CONCERNING CHEUTILAR OR FEUDAL RIGHTS, AND THE IMMUNITY OF +FREEMEN. + +"We will also, and strictly, enjoin and concede that all FREEMEN +(LIBERI HOMINES} of our whole kingdom aforesaid, have and hold +their land and possessions well and in peace, free from every +unjust exaction and from Tallage, so that nothing be exacted or +taken from them except their free service, which of right they +ought to do to us and are bound to do, and according as it was +appointed (statutum) to them, and given to them by us, and conceded +by hereditary right for ever, by the common council (FOLC-GEMOT} of +our whole realm aforesaid." + +These FREEMEN were not created by the Norman Conquest, they existed +prior thereto; and the laws, of which this is one, are declared to +be the laws of Edward the Confessor, which William re-enacted. +Selden, in "The Laws and Government of England," p. 34, speaks of +this law as the first Magna Charta. He says: + +"Lastly, the one law of the kings, which may be called the first +MAGNA CHARTA in the Norman times (55 William I.), by which the king +reserved to himself, from the FREEMEN of this kingdom, nothing but +their free service, in the conclusion saith that their lands were +thus granted to them in inheritance of the king by the COMMON +COUNCIL (FOLC-GEMOT) of the whole kingdom; and so asserts, in one +sentence, the liberty of the FREEMEN, and of the representative +body of the kingdom." + +He further adds: + +"The freedom of an ENGLISHMAN consisteth of three particulars: +first, in OWNERSHIP; second, in VOTING ANY LAW, whereby ownership +is maintained; and, thirdly, in having an influence upon the +JUDICIARY POWER that must apply the law. Now the English, under the +Normans, enjoyed all this freedom with each man's own particular, +besides what they had in bodies aggregate. This was the meaning of +the Normans, and they published the same to the world in a +fundamental law, whereby is granted that all FREEMEN shall have and +hold their lands and possessions in hereditary right for ever; and +by this they being secured from forfeiture, they are further saved +from all wrong by the same law, which provideth that they shall +hold them well or quietly, and in peace, free from all unjust tax, +and from all Tallage, so as nothing shall be exacted nor taken but +their free service, which, by right, they are bound to perform." + +This is expounded in the law of Henry I., cap. 4, to mean that no +tribute or tax shall be taken but what was due in the Confessor's +time, and Edward II. was sworn to observe the laws of the +Confessor. + +The nation was not immediately settled. Rebellions arose either +from the oppression of the invaders or the restlessness of the +conquered; and, as each outburst was put down by force, there were +new lands to be distributed among the adherents of the monarch; +ultimately there were about 700 chief tenants holding IN CAPITE, +but the nation was divided into 60,215 knights' fees, of which the +Church held 28,115. The king retained in his own hands 1422 manors, +besides a great number of forests, parks, chases, farms, and +houses, in all parts of the kingdom; and his followers received +very large holdings. + +Among the Saxon families who retained their land was one named +Shobington in Bucks. Hearing that the Norman lord was coming to +whom the estate had been gifted by the king, the head of the house +armed his servants and tenants, preparing to do battle for his +rights; he cast up works, which remain to this day in grassy +mounds, marking the sward of the park, and established himself +behind them to await the despoiler's onset. It was the period when +hundreds of herds of wild cattle roamed the forest lands of +Britain, and, failing horses, the Shobingtons collected a number of +bulls, rode forth on them, and routed the Normans, unused to such +cavalry. William heard of the defeat, and conceived a respect for +the brave man who had caused it; he sent a herald with a safe +conduct to the chief, Shobington, desiring to speak with him. Not +many days after, came to court eight stalwart men riding upon +bulls, the father and seven sons. "If thou wilt leave me my lands, +O king," said the old man, "I will serve thee faithfully as I did +the dead Harold." Whereupon the Conqueror confirmed him in his +ownership, and named the family Bullstrode, instead of Shobington. + +Sir Martin Wright, in his "Treatise on Tenures," published in 1730, +p. 61, remarks: + +"Though it is true that the possessions of the Normans were of a +sudden very great, and that they received most of them from the +hands of William I., yet it does not follow that the king took all +the lands of England out of the hands of their several owners, +claiming them as his spoils of war, or as a parcel of a conquered +country; but, on the contrary, it appears pretty plain from the +history of those times that the king either had or pretended title +to the crown, and that his title, real or pretended, was +established by the death of Harold, which amounted to an +unquestionable judgment in his favor. He did not therefore treat +his opposers as enemies, but as traitors, agreeably to the known +laws of the kingdom which subjected traitors not only to the loss +of life but of all their possessions." + +He adds (p. 63): + +"As William I. did not claim to possess himself of the lands of +England as the spoils of conquest, so neither did he tyrannically +and arbitrarily subject them to feudal dependence; but, as the +fedual law was at that time the prevailing law of Europe, William +I., who had always governed by this policy, might probably +recommend it to our ancestors as the most obvious and ready way to +put them upon a footing with their neighbors, and to secure the +nation against any future attempts from them. We accordingly find +among the laws of William I. a law enacting feudal law itself, not +EO NOMINE, but in effect, inasmuch as it requires from all persons +the same engagements to, and introduces the same dependence upon, +the king as supreme lord of all the lands of England, as were +supposed to be due to a supreme lord by the feudal law. The law I +mean is the LII. law of William I." + +This view is adopted by Sir William Blackstone, who writes (vol. +ii., p. 47): + +"From the prodicious slaughter of the English nobility at the +battle of Hastings, and the fruitless insurrection of those who +survived, such numerous forfeitures had accrued that he (William) +was able to reward his Norman followers with very large and +extensive possessions, which gave a handle to monkish historians, +and such as have implicitly followed them to represent him as +having by the right of the sword, seized upon all the lands of +England, and dealt them out again to his own favorites--a +supposition grounded upon a mistaken sense of the word conquest, +which in its feudal acceptation signifies no more than acquisition, +and this has led many hasty writers into a strange historical +mistake, and one which, upon the slightest examination, will be +found to be most untrue. + +"We learn from a Saxon chronicle (A.D. 1085), that in the +nineteenth year of King William's reign, an invasion was +apprehended from Denmark; and the military constitution of the +Saxons being then laid aside, and no other introduced in its stead, +the kingdom was wholly defenceless; which occasioned the king to +bring over a large army of Normans and Britons who were quartered +upon, and greatly oppressed, the people. This apparent weakness, +together with the grievances occasioned by a foreign force, might +co-operate with the king's remonstrance, and better incline the +nobility to listen to his proposals for putting them in a position +of defence. For, as soon as the danger was over, the king held a +great council to inquire into the state of the nation, the +immediate consequence of which was the compiling of the great +survey called the Doomsday Book, which was finished the next year; +and in the end of that very year (1086) the king was attended by +all his nobility at Sarum, where the principal landholders +submitted their lands to the yoke of military tenure, and became +the king's vassals, and did homage and fealty to his person." + +Mr. Henry Hallam writes: + +"One innovation made by William upon the feudal law is very +deserving of attention. By the leading principle of feuds, an oath +of fealty was due from the vassal to the lord of whom he +immediately held the land, and no other. The King of France long +after this period had no feudal, and scarcely any royal, authority +over the tenants of his own vassals; but William received at +Salisbury, in 1085, the fealty of all landholders in England, both +those who held in chief and their tenants, thus breaking in upon +the feudal compact in its most essential attribute--the exclusive +dependence of a VASSAL upon his lord; and this may be reckoned +among the several causes which prevented the continental notions of +independence upon the Crown from ever taking root among the English +aristocracy." + +A more recent writer, Mr. FREEMAN ("History of the Norman +Conquest," published in 1871, vol. iv., p. 695), repeats the same +idea, though not exactly in the same words. After describing the +assemblage which encamped in the plains around Salisbury, he says: + +"In this great meeting a decree was passed, which is one of the +most memorable pieces of legislation in the whole history of +England. In other lands where military tenure existed, it was +beginning to be held that he who plighted his faith to a lord, who +was the man of the king, was the man of that lord only, and did not +become the man of the king himself. It was beginning to be held +that if such a man followed his immediate lord to battle against +the common sovereign, the lord might draw on himself the guilt of +treason, but the men that followed him would be guiltless. William +himself would have been amazed if any vassal of his had refused to +draw his sword in a war with France on the score of duty toward an +over-lord. But in England, at all events, William was determined to +be full king over the whole land, to be immediate sovereign and +immediate lord of every man. A statute was passed that every +FREEMAN in the realm should take the oath of fealty to King +William." + +Mr. FREEMAN quotes Stubbs's "Select Charters," p. 80, as his +authority. Stubbs gives the text of that charter, with ten others. +He says: "These charters are from 'Textus Roffensis,' a manuscript +written during the reign of Henry I.; it contains the sum and +substance of all the legal enactments made by the Conqueror +independent of his confirmation of the earlier laws." It is as +follows: "Statuimus etiam ut OMNIS LIBER HOMO feodere et sacramento +affirmet, quod intra et extra Angliam Willelmo regi fideles esse +volunt, terras et honorem illius omni fidelitate cum eo servare et +eum contra inimicos defendere." + +It will be perceived that Mr. Hallam reads LIBER HOMO as "vassal." +Mr. FREEMAN reads them as "FREEMAN," while the older authority, Sir +Martin Wright, says: "I have translated the words LIBERI HOMINES, +'owners of land,' because the sense agrees best with the tenor of +the law." + +The views of writers of so much eminence as Sir Martin Wright, Sir +William Blackstone, Mr. Henry Hallam, and Mr. FREEMAN, are entitled +to the greatest respect and consideration, and it is with much +diffidence I venture to differ from them. The three older writers +appear to have had before them the LII of William I., the latter +the alleged charter found in the "Textus Roffensis;" but as they +are almost identical in expression, I treat the latter as a copy of +the former, and I do not think it bears out the interpretation +sought to be put upon it--that it altered either the feudalism of +England, or the relation of the vassal to his lord; and it must be +borne in mind that not only did William derive his title to the +crown from Edward the Confessor, but he preserved the apparent +continuity, and re-enacted the laws of his predecessor. Wilkins' +"Laws of the ANGLO-SAXONs and Normans," republished in 1840 by the +Record Commissioners, gives the following introduction: + +"Here begin the laws of Edward, the glorious king of England. + +"After the fourth year of the succession to the kingdom of William +of this land, that is England, he ordered all the English noble and +wise men and acquainted with the law, through the whole country, to +be summoned before his council of barons, in order to be acquainted +with their customs, Having therefore selected from all the counties +twelve, they were sworn solemnly to proceed as diligently as they +might to write their laws and customs, nothing omitting, nothing +adding, and nothing changing." + +Then follow the laws, thirty-nine in number, thus showing the +continuity of system, and proving that William imposed upon his +Norman followers the laws of the ANGLO-SAXONs. They do not include +the LII. William I., to which I shall refer hereafter. I may, +however, observe that the demonstration at Salisbury was not of a +legislative character; and that it was held in conformity with +ANGLO-SAXON usages. If, according to Stubbs, the ordinance was a +charter, it would proceed from the king alone. The idea involved in +the statements of Sir Martin Wright, Mr. Hallam, and Mr. FREEMAN, +that the VASSAL OF A LORD was then called on to swear allegiance to +the KING, and that it altered the feudal bond in England, is not +supported by the oath of vassalage. In swearing fealty, the vassal +knelt, placed his hands between those of his lord's, and swore: + +"I become your man from this day forward, of life and limb, and of +earthly worship, and unto you shall be true and faithful, and bear +you faith for the tenements at that I claim to hold of you, saving +the faith that I owe unto our Sovereign Lord the King." + +This shows that it was unnecessary to call vassals to Salisbury to +swear allegiance. The assemblage was of the same nature and +character as previous meetings. It was composed of the LIBERI +HOMINES, the FREEMEN, described by the learned John Selden (ante, +p. 10), and by Dr. Robertson and De Lolme (ante, pp. 12, 13). + +But there is evidence of a much stronger character, which of itself +refutes the views of these writers, and shows that the Norman +system, at least during the reign of William I., was a continuation +of that existing previous to his succession to the throne; and that +the meeting at Salisbury, so graphically portrayed, did not effect +that radical change in the position of English landholders which +has been stated. I refer to the works of EADMERUS; he was a monk of +Canterbury who was appointed Bishop of St. Andrews, and declined or +resigned the appointment because the King of Scotland refused to +allow his consecration by the Archbishop of Canterbury. His history +includes the reigns of William I., William II., and Henry I., from +1066 to 1122, and he gives, at page 173, the laws of Edward the +Confessor, which William I. gave to England; they number seventy- +one, including the LII. law quoted by Sir Martin Wright. The +introduction to these laws is in Latin and Norman-French, and is as +follows: + +"These are the laws and customs which King William granted to the +whole people of England after he had conquered the land, and they +are those which KING EDWARD HIS PREDECESSOR observed before him." + +[Footnote: The laws of William are given in a work entitled +"Eadmeri Monachi Cantuariensis Historia Novorum," etc. It includes +the reigns of William I. and II., and Henry I., from 1066 to 1122, +and is edited by John Selden. Page 173 has the following: + +"Hae sunt Leges et Consuetudines quas Willielmus Rex concessit +universo Populo Angliae post subactam terram. Eaedum sunt quas +Edwardus Rex cognatus ejus obscruauit ante eum. + +"Ces sont les leis et les Custums que le Rui people de Engleterre +apres le Conquest de le Terre. Ice les meismes que le Rui Edward +sun Cosin tuit devant lui. + +"LII. + +"De fide et obsequio erga Regnum. + +"Statuimus etiam ut omnes liiben homines foedere et sacramento +affirment quod intra et extra universum regnum Anglias (quod olim +vocabatur regnum Britanniae) Willielmo suo domino fideles esse +volunt, terras et honores illins fidelitate ubique servare cum eo +et contra inimicos et alienigonas defendere."] + +This simple statement gets rid of the theory of Sir Martin Wright, +of Sir William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that +William introduced a new system, and that he did so either as a new +feudal law or as an amendment upon the existing feudalism. The LII. +law, quoted by Wright, is as follows: + +"We have decreed that all FREE MEN should affirm on oath, that both +within and without the whole kingdom of England (which is called +Britain) they desire to be faithful to William their lord, and +everywhere preserve unto him his land and honors with fidelity, and +defend them against all enemies and strangers." + +Eadmerus, who wrote in the reign of Henry I., gives the LII. +William I. as a confirmatory law. The charter given by Stubbs is a +contraction of the law given by Eadmerus. The former uses the words +OMNES LIBERI HOMINES; the latter, the words OMNIS LIBERI HOMO. +Those interested can compare them, as I shall give the text of each +side by side. + +Since the paper was read, I have met with the following passage in +Stubbs's "Constitutional History of England," vol. i., p. 265: + +"It has been maintained that a formal and definitive act, forming +the initial point of the feudalization of England, is to be found +in a clause of the laws, as they are called, of the Conqueror, +which directs that every FREEMAN shall affirm, by covenant and +oath, that 'he will be faithful to King William within England and +without, will join him in preserving his land with all fidelity, +and defend him against his enemies.' But this injunction is little +more than the demand of the oath of allegiance taken to the Anglo- +Saxon kings, and is here required not of every feudal dependant of +the king, but of every FREEMAN or freeholder whatsoever. In that +famous Council of Salisbury, A. D, 1086, which was summoned +immediately after the making of the Doomsday survey, we learn, from +the 'Chronicle,' that there came to the king 'all his witan and all +the landholders of substance in England, whose vassals soever they +were, and they all submitted to him and became his men, and swore +oaths of allegiance that they would be faithful to him against all +others.' In the act has been seen the formal acceptance and date of +the introduction of feudalism, but it has a very different meaning. +The oath described is the oath of allegiance, combined with the act +of homage, and obtained from all landowners whoever their feudal +lord might be. It is a measure of precaution taken against the +disintegrating power of feudalism, providing a direct tie between +the sovereign and all freeholders which no inferior relations +existing between them and the mesne lords would justify them in +breaking." + +I have already quoted from another of Stubbs's works, "Select +Charters," the charter which he appears to have discovered bearing +upon this transaction, and now copy the note, giving the +authorities quoted by Stubbs, with reference to the above passage. +He appears to have overlooked the complete narration of the alleged +laws of William I., given by Eadmerus, to which I have referred. +The note is as follows: + +"Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, +seq., where I have attempted to prove the spuriousness of the +document called the Charter of William I., printed in the ancient +'Laws' ed. Thorpe, p. 211. The way in which the regulation of the +Conqueror here referred to has been misunderstood and misused is +curious. Lambarde, in the 'Archaionomia,' p. 170, printed the false +charter in which this genuine article is incorporated as an +appendiz to the French version of the Conqueror's laws, numbering +the clauses 51 to 67; from Lambarde, the whole thing was +transferred by Wilkins into his collection of ANGLO-SAXON laws. +Blackstone's 'Commentary,' ii. 49, suggested that perhaps the very +law (which introduced feudal tenures) thus made at the Council of +Salisbury is that which is still extant and couched in these +remarkable words, i. e., the injunction in question referred to by +Wilkins, p. 228 Ellis, in the introduction to 'Doomsday,' i. 16, +quotes Blackstone, but adds a reference to Wilkins without +verifying Blackstone's quotation from his collection of laws, +substituting for that work the Concilia, in which the law does not +occur. Many modern writers have followed him in referring the +enactment of the article to the Council of Salisbury. It is well to +give here the text of both passages; that in the laws runs thus: +'Statuimus etiam ut omnis liber homo foedere et sacremento +affirmet, quod intra et extra Angliam Willelmo regi fideles esse +volunt, terras et honorem illius omni fidelitate eum eo servare et +ante eum contra inimicos defendere' (Select Charters, p. 80). the +homage done at Salisbury is described by Florence thus: 'Nec multo +post mandavit ut Archiepiscopi episcopi, abbates, comitas et +barones et vicecomitas cum suis militibus die Kalendarum Augustarem +sibi occurent Saresberiae quo cum venissent milites eorem sibi +fidelitatem contra omnes homines jurare coegit.' The 'Chronicle' is +a little more full: 'Thaee him comon to his witan and ealle tha +Landsittende men the ahtes waeron ofer eall Engleland waeron thaes +mannes men the hi waeron and ealle hi bugon to him and waeron his +men, and him hold athas sworon thaet he woldon ongean ealle other +men him holde beon.'" + +Mr. Stubbs had, in degree, adopted the view at which I had arrived, +that the law or charter of William I. was an injunction to enforce +the oath of allegiance, previously ordered by the laws of Edward +the Confessor, to be taken by all FREEMEN, and that it did not +relate to vassals, or alter the existing feudalism. + +As the subject possesses considerable interest for the general +reader as well as the learned historian, I think it well to place +the two authorities side by side, that the text may be compared: + +LII. William I., as given by Eadments. "De fide et obsequio erga +Regnum. + +"Statuimus etiam ut omnes LIBERI HOMINES foedere et sacramento +affirment quod intra et extra univereum regnum Anglise (quod olim +vocabatur regnum Britanniae) Wilhielmo suo domino fideles ease +volunt, terras et honores ilius fidelitate ubique servare cum eo et +contra inimicos et alienigenas defendere." + +Charter from Textus Roffensis, given by Mr. Stubbs. + +"Statuimus etiam ut omnis liber homo feodere et sacramento +affirmet, quod intra et extra Angliam. Willelmo regi fideles ease +volunt, terras et honorem illius omni fidelitate cum eo servare et +ante eum contra inimicos defendere." + +I think the documents I have quoted show that Sir Martin Wright, +Sir William Blackstone, and Messrs. Hallam and FREEMAN, labored +under a mistake in supposing that William had introduced or imposed +a new feudal law, or that the vassals of a lord swore allegiance to +the king. The introduction to the laws of William I. shows that it +was not a new enactment, or a Norman custom introduced into +England, and the law itself proves that it relates to FREEMEN, and +not to vassals. + +The misapprehension of these authors may have arisen in this way: +William I. had two distinct sets of subjects. The NORMANS, who had +taken the oath of allegiance on obtaining investiture, and whose +retinue included vassals; and the ANGLO-SAXONS, among whom +vassalage was unknown, who were FREEMAN (LIBERI HOMINES) as +distinguished from serfs. The former comprised those in possesion +of Odhal (noble) land, whether held from the crown or its tenants. +It was quite unnecessary to convoke the Normans and their vassals, +while the assemblage of the Saxons--OMNES LIBERI HOMINES--was not +only to conformity with the laws of Edward the Confessor, but was +specially needful when a foreigner had possesed himself of the +throne. + +I have perhaps dwelt to long upon this point, but the error to +which I have referred has been adopted as if it was an unquestioned +fact, and has passed into our school-books and become part of the +education given to the young, and therefore it required some +examination. + +I believe that a very large portion of the land in England did not +change hands at that period, nor was the position of either SERFS +or VILLEINS changed. The great alteration lay in the increase in +the quantity of BOC-LAND. Much of the FOLC-LAND was forfeited and +seized upon, and as the king claimed the right to give it away, it +was called TERRA REGIS. The charter granted by King William to Alan +Fergent, Duke of Bretagne, of the lands and towns, and the rest of +the inheritance of Edwin, Earl of Yorkshire, runs thus: + +"Ego Guilielmus cognomine Bastardus, Rex Anglise do et concede tibi +nepoti meo Alano Brittanias Comiti et hseredibus tuis imperpetuum +omnes villas et terras qua nuper fuerent Comitis Edwini in +Eborashina cum feodis militise et aliis libertatibus et +consuetudinibus ita libere et honorifice sicut idem Edwinus eadem +tenuit. + +"Data obsidione coram civitate Eboraci." + +This charter does not create a different title, but gives the lands +as held by the former possessor. The monarch assumed the function +of the fole-gemot, but the principle remained--the feudee only +became tenant for life. Each estate reverted to the Crown on the +death of him who held it; but, previous to acquiring possession, +the new tenant had to cease to be his own "man," and became the +"man" of his superior. This act was called "homage," and was +followed by "investiture." In A.D. 1175, Prince Henry refused to +trust himself with his father till his homage had been renewed and +accepted, for it bound the superior to protect the inferior. The +process is thus described by De Lolme (chap, ii., sec. 1): + +"On the death of the ancestor, lands holden by 'knight's service' +and by 'grand sergeantcy' were, upon inquisition finding the tenure +and the death of the ancestor, seized into the king's hands. If the +heir appeared by the inquisition to be within the age of twenty-one +years, the King retained the lands till the heir attained the age +of twenty-one, for his own profit, maintaining and educating the +heir according to his rank. If the heir appeared by the inquisition +to have attained twenty-one, he was entitled to demand livery of +the lands by the king's officers on paying a relief and doing +fealty and homage. The minor heir attaining twenty-one, and proving +his age, was entitled to livery of his lands, on doing fealty and +homage, without paying any relief." + +The idea involved is, that the lands Were HELD, and NOT OWNED, and +that the proprietary right lay in the nation, as represented by the +king. If we adopt the poetic idea of the Brehon code, that "land is +perpetual man," then HOMAGE for land was not a degrading +institution. But it is repugnant to our ideas to think that any man +can, on any ground, or for any consideration, part with his +manhood, and become by homage the "man" of another. + +The Norman chieftains claimed to be peers of the monarch, and to +sit in the councils of the nation, as barons-by-tenure and not by +patent. This was a decided innovation upon the usages of the Anglo- +Saxons, and ultimately converted the Parliament, the FOLC-GEMOT, +into two branches. Those who accompanied the king stood in the same +position as the companions of Romulus, they were the PATRICIANS; +those subsequently called to the councils of the sovereign by +patent corresponded with the Roman NOBILES. No such patents were +issued by any of the Norman monarchs. But the insolence of the +Norman nobles led to the attempt made by the successors of the +Conqueror to revive the Saxon earldoms as a counterpoise. The +weakness of Stephen enabled the greater fudges to fortify their +castles, and they set up claims against the Crown, which aggravated +the discord that arose in subsequent reigns. + +The "Saxon Chronicles," p. 238, thus describes the oppressions of +the nobles, and the state of England in the reign of Stephen: + +"They grievously oppressed the poor people with building castles, +and when they were built, filled them with wicked men, or rather +devils, who seized both men and women who they imagined had any +money, threw them into prison, and put them to more cruel tortures +than the martyrs ever endured; they suffocated some in mud, and +suspended others by the feet, or the head, or the thumbs, kindling +fires below them. They squeezed the heads of some with knotted +cords till they pierced their brains, while they threw others into +dungeons swarming with serpents, snakes, and toads." + +The nation was mapped out, and the owners' names inscribed in the +Doomsday Book. There were no unoccupied lands, and had the +possessors been loyal and prudent, the sovereign would have had no +lands, save his own private domains, to give away, nor would the +industrious have been able to become tenants-in-fee. The +alterations which have taken place in the possession of land since +the composition of the Book of Doom, have been owing to the +disloyalty or extravagance of the descendants of those then found +in possession. + +Notwithstanding the vast loss of life in the contests following +upon the invasion, the population of England increased from +2,150,000 in 1066, when William landed, to 3,350,000 in 1152, when +the great-grandson of the Conqueror ascended the throne, and the +first of the Plantagenets ruled in England. + + + + + +V. THE PLANTAGENETS. + + +Whatever doubts may exist as to the influence of the Norman +Conquest upon the mass of the people--the FREEMEN, the ceorls, and +the serfs--there can be no doubt that its effect upon the higher +classes was very great. It added to the existing FEUDALISM--the +system of Baronage, with its concomitants of castellated residences +filled with armed men. It led to frequent contests between +neighboring lords, in which the liberty and rights of the FREEMEN +were imperilled. It also eventuated in the formation of a distinct +order-the peerage--and for a time the constitutional influence of +the assembled people, the FOLC-GEMOT, was overborne. + +The principal Norman chieftains were barons in their own country, +and they retained that position in England, but their holdings in +both were feudal, not hereditary. When the Crown, originally +elective, became hereditary, the barons sought to have their +possessions governed by the same rule, to remove them from the +class of TERRAREGIS (FOLC-LAND), and to convert them into chartered +land. Being gifts from the monarch, he had the right to direct the +descent, and all charters which gave land to a man and his heirs, +made each of them only a tenant for life; the possessor was bound +to hand over the estate undivided to the heir, and he could neither +give, sell, nor bequeath it. The land was BENEFICIA, just as +appointments in the Church, and reverted, as they do, to the patron +to be re-granted. They were held upon military service, and the +major barons, adopting the Saxon title Earl, claimed to be PEERS of +the monarch, and were called to the councils of the state as +barons-by-tenure. In reply to a QUO WARRANTO, issued to the Earl +of Surrey, in the reign of Edward I., he asserted that his +ancestors had assisted William in gaining England, and were equally +entitled to a share of the spoils. "It was," said he, "by their +swords that his ancestors had obtained their lands, and that by his +he would maintain his rights." The same monarch required the Earls +of Hereford and Norfolk to go over with his army to Guienne, and +they replied, "The tenure of our lands does not require us to do +so, unless the king went in person." The king insisted; the earls +were firm. "By God, sir Earl," said Edward to Hereford, "you shall +go or hang." "By God, sir King," replied the earl, "I will neither +go nor hang." The king submitted and forgave his warmth. + +The struggle between the nobles and the Crown commenced, and was +continued, under varying circumstances. Each of the barons had a +large retinue of armed men under his own command, and the Crown was +liable to be overborne by a union of ambitious nobles. At one time +the monarch had to face them at Runnymede and yield to their +demands; at another he was able to restrain them with a strong +hand. The Church and the barons, when acting in union, proved too +strong for the sovereign, and he had to secure the alliance of one +of these parties to defeat the views of the other. The barons +abused their power over the FREEMEN, and sought to establish the +rule "that every man must have a lord," thus reducing them to a +state of vassalage. King John separated the barons into two +classes--major and minor; the former should have at least thirteen +knights' fees and a third part; the latter remained country +gentlemen. The 20th Henry III., cap. 2 and 4, was passed to secure +the rights of FREEMEN, who were disturbed by the great lords, and +gave them an appeal to the king's courts of assize. + +Bracton, an eminent lawyer who wrote in the time of Henry III., +says: + +"The king hath superiors--viz., God and the law by which he is made +king; also his court--viz., his earls and barons. Earls are the +king's associates, and he that hath an associate hath a master; and +therefore, if the king be unbridled, or (which is all one) without +law, they ought to bridle him, unless they will be unbridled as the +king, and then the commons may cry, Lord Jesus, pity us," etc. + +An eminent lawyer, time of Edward I., writes: + +"Although the king ought to have no equal in the land, yet because +the king and his commissioners can be both judge and party, the +king ought by right to have companions, to hear and determine in +Parliament all writs and plaints of wrongs done by the king, the +queen, or their children." + +These views found expression in the coronation oath. Edward II. was +forced to swear: + +"Will you grant and keep, and by your oath confirm to the people of +England the laws and customs to them, granted by the ancient kings +of England, your righteous and godly predecessors; and especially +to the clergy and people, by the glorious King St. Edward, your +predecessor?" + +The king's answer--"I do them grant and promise." + +"Do you grant to hold and keep the laws and rightful customs which +the commonalty of your realm shall have chosen, and to maintain and +enforce them to the honor of God after your power?" + +The king's answer--"I this do grant and promise." + +I shall not dwell upon the event most frequently quoted with +reference to the era of the Plantagenets--I mean King John's "Magna +Charta." It was more social than territorial, and tended to limit +the power of the Crown, and to increase that of the barons. The +Plantagenets had not begun to call Commons to the House of Lords. +The issue of writs was confined to those who were barons-by-tenure, +the PATRICIANS of the Norman period. The creation of NOBLES was the +invention of a later age. The baron feasted in his hall, while the +slave grovelled in his cabin. Bracton, the famous lawyer of the +time of Henry III., says: "All the goods a slave acquired belonged +to his master, who could take them from him whenever he pleased," +therefore a man could not purchase his own freedom. "In the same +year, 1283," says the Annals of Dunstable, "we sold our slave by +birth, William Fyke, and all his family, and received one mark from +the buyer." The only hope for the slave was, to try and get into +one of the walled towns, when he became free. Until the Wars of the +Roses, these serfs were greatly harassed by their owners. + +In the reign of Edward I., efforts were made to prevent the +alienation of land by those who received it from the Norman +sovereigns. The statute of mortmain was passed to restrain the +giving of lands to the Church, the statute DE DONIS to prevent +alienation to laymen. The former declares: + +"That whereas religious men had entered into the fees of other men, +without license and will of the chief lord, and sometimes +appropriating and buying, and sometimes receiving them of gift of +others, whereby the services that are due of such fee, and which, +in the beginning, were provided for the defence of the realm, are +wrongfully withdrawn, and the chief lord do lose the escheats of +the same (the primer seizin on each life that dropped); it +therefore enacts: That any such lands were forfeited to the lord of +the fee; and if he did not take it within twelve months, it should +be forfeited to the king, who shall enfeoff other therein by +certain services to be done for us for the defence of the realm." + +Another act, the 6th Edward I., cap. 3, provides: + +"That alienation by the tenant in courtesy was void, and the heir +was entitled to succeed to his mother's property, notwithstanding +the act of his father." + +The 13th Edward I., cap. 41, enacts: + +"That if the abbot, priors, and keepers of hospitals, and other +religious houses, aliened their land they should be seized upon by +the king." + +The 13th Edward I., cap. 1, DE DONIS conditionalitiis, provided: + +"That tenements given to a man, and the heirs of his body, should, +at all events, go to the issue, if there were any; or, if there +were none, should revert to the donor." + +But while the fiefs of the Crown were forbidden to alien their +lands, the FREEMEN, whose lands were Odhal (noble) and of Saxon +descent, the inheritance of which was guaranteed to them by 55 +William I. (ANTE, p. 13), were empowered to sell their estates by +the statute called QUIA EMPTORES (6 Edward I.). It enacts: + +"That from henceforth it shall be lawful to every FREEMEN to sell, +at his own pleasure, his lands and tenements, or part of them: so +that the feoffee shall hold the same lands and tenements of the +chief lord of the fee by such customs as his feoffee held before." + +The scope of these laws was altered in the reign of Edward III. +That monarch, in view of his intended invasion of France, secured +the adhesion of the landowners, by giving them power to raise money +upon and alien their estates. The permission was as follows, 1 +Edward III., cap. 12: + +"Whereas divers people of the realm complain themselves to be +grieved because that lands and tenements which be holden of the +king in chief, and aliened without license, have been seized into +the king's hand, and holden as forfeit: (2.) The king shall not +hold them as forfeit in such case, but will and grant from +henceforth of such lands and tenements so aliened, there shall be +reasonable fine taken in chancery by due process." + +1 Edward III., cap. 13: + +"Whereas divers have complained that they be grieved by reason of +purchasing of lands and tenements, which have been holden of the +king's progenitors that now is, as of honors; and the same lands +have been taken into the king's hands, as though they had been +holden in chief of the king as of his crown: (2.) The king will +that from henceforth no man be grieved by any such purchase." + +De Lolme, chap. iii., sec. 3, remarks on these laws that they took +from the king all power of preventing alienation or of purchase. +They left him the reversionary right on the failure of heirs. + +These changes in the relative power of the sovereign and the nobles +took place to enable Edward to enter upon the conquest of France; +but that monarch, conferred a power upon the barons, which was used +to the detriment of his descendants, and led to the dethronement of +the Plantagenets. + +The line of demarcation between the two sets of titles, those +derived through the ANGLO-SAXON laws and those derived through the +grants of the Norman sovereigns, was gradually being effaced. The +people looked back to the laws of Edward the Confessor, and forced +them upon Edward II. But after passing the laws which prevented +nobles from selling, and empowering FREEMEN to do so, Edward III. +found it needful to assert his claims to the entire land of +England, and enacted in the twenty-fourth year of his reign: + +"That the king is the universal lord and original proprietor of all +land in his kingdom; that no man doth or can possess, any part of +it but what has mediately or immediately been derived as a gift +from him to be held on feodal service." + +Those who obtained gifts of land, only held or had the use of them; +the ownership rested in the Crown. Feodal service, the maintenance +of armed men, and the bringing them into the field, was the rent +paid. + +The wealth which came into England after the conquest of France +influenced all classes, but none more than the family of the king. +His own example seems to have affected his descendants. The +invasion of France and the captivity of its king reappear in the +invasion of England by Henry IV., and the capture and dethronement +of Richard II. The prosperity of England during the reign of Edward +had passed away in that of his grandson. Very great distress +pervaded the land, and it led to efforts to get rid of villeinage. +The 1st Richard II. recites: + +"That grievous complaints had been made to the Lords and Commons, +that villeins and land tenants daily withdraw into cities and +towns, and a special commission was appointed to hear the case, and +decide thereon." + +The complaint was renewed, and appears in Act 9 Richard II., cap. +2: + +"Whereas divers villeins and serfs, as well of the great Lords as +of other people, as well spiritual as temporal, do fly within the +cities, towns, and places entfranched. as the city of London, and +other like, and do feign divers suits against their Lords, to the +intent to make them free by the answer of the Lords, it is accorded +and assented that the Lords and others shall not be forebound of +their villeins, because of the answer of the Lords." + +Serfdom or slavery may have existed previous to the ANGLO-SAXON +invasion, but I am disposed to think that the Saxon, the Jutes, and +the Angles reduced the inhabitants of the lands which they +conquered, into serfdom. The history of that period shows that men, +women, and children were constantly sold, and that there were +established markets. One at Bristol, which was frequented by Irish +buyers, was put down, owing to the remonstrance of the Bishop. +After the Norman invasion the name of Villein, a person attached to +the villa, was given to the serfs. The village was their residence. +Occasional instances of enfranchisement took place; the word +signified being made free, and at that time every FREEMAN was +entitled to a vote. The word enfranchise has latterly come to bear +a different meaning, and to apply solely to the possession of a +vote, but it originally meant the elevation of a serf into the +condition of a FREEMAN. The act of enfranchisement was a public +ceremony usually performed at the church door. The last act of +ownership performed by the master was the piercing of the right ear +with an awl. Many serfs fled into the towns, where they were +enfranchised and became FREEMEN. + +The disaffection of the common people increased; they were borne +down with oppression. They struggled against their masters, and +tried to secure their personal liberty, and the freedom of their +land. The population rose in masses in the reign of Richard II., +and demanded-- + +1st. The total abolition of slavery for themselves and their +children forever; + +2d. The reduction of the rent of good land to 4d. per acre; + +3d. The right of buying and selling, like other men, in markets and +fairs; + +4th. The pardon of all offences. + +The monarch acted upon insidious advice; he spoke them fair at +first, to gain time, but did not fulfil his promises. Ultimately +the people gained part of their demands. To limit or defeat them, +an act was passed, fixing the wages of laborers to 4d. per day, +with meat and drink, or 6d. per day, without meat and drink, and +others in proportion; but with the proviso, that if any one refused +to serve or labor on these terms, every justice was at liberty to +send him to jail, there to remain until he gave security to serve +and labor as by law required. A subsequent act prevents their being +employed by the week, or paid for holidays. + +Previous to this period, the major barons and great lords tilled +their land by serfs, and had very large flocks and herds of cattle. +On the death of the Bishop of Winchester, 1367, his executors +delivered to Bishop Wykeham, his successor in the see, the +following: 127 draught horses, 1556 head of cattle, 3876 wedders, +4777 ewes, and 3541 lambs. Tillage was neglected; and in 1314 there +was a severe dearth; wheat sold at a price equal to L30 per +quarter, the brewing of ale was discontinued by proclamation, in +order "to prevent those of middle rank from perishing for want of +food." + +The dissensions among the descendants of Edward III. as to the +right to the Crown aided the nobles in their efforts to make their +estates hereditary, and the civil wars which afflicted the nation +tended to promote that object. Kings were crowned and discrowned at +the will of the nobles, who compelled the FREEMEN to part with +their small estates. The oligarchy dictated to the Crown, and +oppressed and kept down the FREEMEN. The nobles allied themselves +with the serfs, who were manumitted that they might serve as +soldiers in the conflicting armies. + +From the Conquest to the time of Richard II., only barons-by- +tenure, the descendants of the companions of the Conqueror, were +invited by writ to Parliament. That monarch made an innovation, and +invited others who were not barons-by-tenure. The first dukedom was +created the 11th of Edward III., and the first viscount the 18th +Henry VI. + +Edward IV. seized upon the lands granted by former kings, and gave +them to his own followers, and thus created a feeling of uneasiness +in the minds of the nobility, and paved the way for the events +which were accomplished by a succeeding dynasty. The decision in +the Taltarum case opened the question of succession; and Edward's +efforts to put down retainers was the precursor of the Tudor +policy. + +We have a picture of the state of society in the reign of Edward +IV. in the Paston Memoirs, written by Margaret Paston. Her husband, +John Paston, was heir to Sir John Fastolf. He was bound by the will +to establish in Caister Castle, Fastolf s own mansion, a college of +religious men to pray for his benefactor's soul. But in those days +might was right, and the Duke of Norfolk, fancying that he should +like the house for himself, quietly took possession of it. At that +time, Edward was just seated on the throne, and Edward had just +been reported to Paston to have said in reference to another suit, +that + +"He would be your good lord therein as he would to the poorest man +in England. He would hold with you in your right; and as for favor, +he will not be understood that he shall show favor more to one man +to another, not to one in England." + +This was a true expression of the king's intentions. But either he +was changeable in his moods, or during these early years he was +hardly settled enough on the throne always to be able to carry out +his wishes. This time, however, in some way or another, the great +duke was reduced to submission, and Caister was restored to Paston. + +In 1465 a new claimant appeared; and claimants, though as +troublesome in the fifteenth as the nineteenth century, proceeded +in a different fashion. This time it was the Duke of Suffolk, who +asserted a right to the manor of Drayton in his own name, and who +had bought up the assumed rights of another person to the manor of +Hellesdon. John Paston was away, and his wife had to bear the +brunt. An attempt to levy rent at Drayton was followed by a threat +from the duke's men, that if her servants "ventured to take any +further distresses at Drayton, even if it were but of the value of +a pin, they would take the value of an ox in Hellesdon." + +Paston and the duke alike professed to be under the law. But each +was anxious to retain that possession which in those days seems +really to have been nine points of the law. The duke got hold of +Drayton, while Hellesdon was held for Paston. One day Paston's men +made a raid upon Drayton, and carried off seventy-seven head of +cattle. Another day the duke's bailiff came to Hellesdon with 300 +men to see if the place were assailable. Two servants of Paston, +attempting to keep a court at Drayton in their master's name, were +carried off by force. At last the duke mustered his retainers and +marched against Hellesdon. The garrison, too weak to resist, at +once surrendered. + +"The duke's men took possession, and set John Paston's own tenants +to work, very much against their wills, to destroy the mansion and +break down the walls of the lodge, while they themselves ransacked +the church, turned out the parson, and spoiled the images. They +also pillaged very completely every house in the village. As for +John Paston's own place, they stripped it completely bare; and +whatever there was of lead, brass, pewter, iron, doors or gates, or +other things that they could not conveniently carry off, they +hacked and hewed them to pieces. The duke rode through Hellesdon to +Drayton the following day, while his men were still busy completing +the wreck of destruction by the demolition of the lodge. The wreck +of the building, with the rents they made in its walls, is visible +even now" (Introd. xxxv.). + +The meaning of all this is evident. We have before us a state of +society in which the anarchical element is predominant. But it is +not pure anarchy. The nobles were determined to reduce the middle +classes to vassalage. + +The reign of the Plantagenets witnessed the elevation of the +nobility. The descendants of the Norman barons menaced, and +sometimes proved too powerful for the Crown. In such reigns as +those of Edward I., Edward III., and Henry VI., the barons +triumphed. The power wielded by the first Edward fell from the +feeble grasp of his son and successor. The beneficent rule of +Edward III. was followed by the anarchy of Richard II. Success led +to excess. The triumphant party thinned the ranks of its opponents, +and in turn experienced the same fate. The fierce struggle of the +Red and White Roses weakened each. Guy, Earl of Warwick, "the king- +maker," sank overpowered on the field of Tewkesbury, and with him +perished many of the most powerful of the nobles. The jealousy of +Richard III. swept away his own friends, and the bloody contest on +Bosworth field destroyed the flower of the nobility. The sun of the +Plantagenets went down, leaving the country weak and impoverished, +from a contest in which the barons sought to establish their own +power, to the detriment alike of the Crown and the FREEMEN. The +latter might have exclaimed: + +"Till half a patriot, half a coward, grown, We fly from meaner +tyrants to the throne." + +The long contest terminated in the defeat alike of the Crown and +the nobles, but the nation suffered severely from the struggle. + +The rule of this family proved fatal to the interest of a most +important class, whose rights were jealously guarded by the +Normans. The Liberi Homines, the FREEMEN, who were Odhal occupiers, +holding in capite from the sovereign, nearly disappeared in the +Wars of the Roses. Monarchs who owed their crown to the favor of +the nobles were too weak to uphold the rights of those who held +directly from the Crown, and who, in their isolation, were almost +powerless. + +The term FREEMAN, originally one of the noblest in the land, +disappeared in relation to urban tenures, and was applied solely to +the personal rights of civic burghers; instead thereof arose the +term FREEHOLDER from FREE HOLD, which was originally a grant free +from all rent, and only burdened with military service. The term +was subsequently applied to land held for leases for lives as +contradistinguished from leases for years, the latter being deemed +base tenures, and insufficient to qualify a man to vote; the theory +being that no man was free whose tenure could be disturbed during +his life. Though the Liberi Homines or FREEMEN were, as a class, +overborne in this struggle, and reduced to vassalage, yet their +descendants were able, under the leadership of Cromwell, to regain +some of the rights and influence of which they had been despoiled +under the Plantagenets. + +Fortescue, Lord Chief-Justice to Henry VI., thus describes the +condition of the English people: + +"They drunk no water, unless it be that some for devotion, and upon +a rule of penance, do abstain from other drink. They eat +plentifully of all kinds of flesh and fish. They wear woollen cloth +in all their apparel. They have abundance of bed covering in their +houses, and all other woollen stuff. They have great store of all +implements of household. They are plentifully furnished with all +instruments of husbandry, and all other things that are requisite +to the accomplishment of a great and wealthy life, according to +their estates and degrees." + +This flattering picture is not supported by the existing +disaffection and the repeated applications for redress from the +serfs and the smaller farmers, "and the simple fact that the +population had increased under the Normans--a period of 88 years-- +from 2,150,000 to 3,350,000, while under the Plantagenets--a period +of 300 years--it only increased to 4,000,000, the addition to the +population in that period being only 650,000. The average increase +in the former period was nearly 14,000 per annum, while in the +latter it did not much exceed 2000 per annum. This goes far to +prove the evil from civil wars, and the oppression of the +oligarchy. + + + + + +VI. THE TUDORS + + +The protracted struggle of the Plantagenets left the nation in a +state of exhaustion. The nobles had absorbed the lands of the +FREEMEN, and had thus broken the backbone of society. They had then +entered upon a contest with the Crown to increase their own power; +and to effect their selfish objects, setup puppets, and ranged +under conflicting banners, but the Nemesis followed. The Wars of +the Roses destroyed their own power, and weakened their influence, +by sweeping away the heads of the principal families. The ambition +of the nobles failed of its object, when "the last of the barons" +lay gory in his blood on the field of Tewkesbury. The wars were, +however, productive of one national benefit, in virtually ending +the state of serfdom to which the aborigines were reduced by the +Scandinavian invasion. The exhaustion of the nation prepared the +way to changes of a most radical character, and the reigns of the +Tudors are characterized by greater innovations and more striking +alterations than even those which followed the accession of the +Normans. + +Henry of Richmond came out of the field of Bostworth a vistor, and +ascended the throne of a nation whose leading nobles had been swept +away. The sword had vied with the axe. Henry VII. was prudent and +cunning; and in the absence of any preponderating oligarchical +influence, planted the heel of the sovereign upon the necks of the +nobles. He succeeded where the Plantagenets had failed. His +accession became the advent of a series of measures which altered +most materially the system of landholding. The Wars of the Roses +showed that the power of the nobles was too great for the comfort +of the monarch. The decision in Taltarum's case, in the reign of +Edward IV., affected the entire system of entail. Land, partly +freed from restrictions, passed into other hands. But Henry went +further. He destroyed their physical influence by ridigly putting +down retainer; and in one of his tours, while partaking of the +hospitality of the Earl of Oxford, he fined him L15,000 for having +greeted him with 5000 of his tenants in livery. The rigid +enforcement of the laws passed against retainers in former reigns, +but now made more penal, strengthened the king and reduced the +power of the nobles. Their estates were relieved of a most onerous +charge, and the lands freed from the burden of supporting the army +of the state. + +Henry VII. had thus a large fund to give away; the rent of the land +granted in knights' service virtually consisted of two separate +funds--one part went to the feudee, as officer or commmandant, the +other to the soldiery or vassals. The latter part belonged to the +state. Had Henry applied it to the reestablishment of the class of +FREEMEN (LIBERI HOMINES), as was recently done by the Emperor of +Russia when he abolished serfdom, he would have created a power on +which the Crown and the constitution could rely. This might have +been done by converting the holdings of the men-at-arms into +allodial estates, held direct from the Crown. Such an arrangement +would have left the income of the feudee unimpaired, as it would +only have applied the fund that had been paid to the men-at-arms to +this purpose; and by creating out of that land a number of small +estates held direct from the Crown, the misery that arose from the +eviction and destruction of a most meritorious class, would have +been avoided. Vagrancy, with its great evils, would have been +prevented, and the passing of the Poor laws would have been +unnecessary. Unfortunately Henry and his counsellors did not +appreciate the consequence of the suppression of retainers and +liveries. By the course he adopted to secure the influence of the +Crown, he compensated the nobles, but destroyed the agricultural +middle class. + +This change had an important and, in some respects, a most +injurious effect upon the condition of the nation, and led to +enactments of a very extraordinary character, which I must submit +in detail, inasmuch as I prefer giving the ipsissima verba of the +statute-book to any statement of my own. To make the laws +intelligible, I would remind you that the successful efforts of the +nobles had, during the three centuries of Plantagenet rule, nearly +obliterated the LIBERI HOMINES (whose rights the Norman conqueror +had sedulously guarded), and had reduced them to a state of +vassalage. They held the lands of their lord at his will, and paid +their rent by military service. When retainers were put down, and +rent or knights' service was no longer paid with armed men, their +occupation was gone. They were unfit for the mere routine of +husbandry, and unprovided with funds for working their farms. The +policy of the nobles was changed. It was no longer their object to +maintain small farmsteads, each supplying its quota of armed men to +the retinue of the lord; and it was their interest to obtain money +rents. Then commenced a struggle of the most fearful character. The +nobles cleared their lands, pulled down the houses, and displaced +the people. Vagrancy, on a most unparalleled scale, took place. +Henry VII., to check this cruel, unexpected, and harsh outcome of +his own policy, resorted to legislation, which proved nearly +ineffectual. As early as the fourth year of his reign these efforts +commenced with an enactment (cap. 19) for keeping up houses and +encouraging husbandry; it is very quaint, and is as follows: + +"The King, our Sovereign Lord, having singular pleasure above all +things to avoid such enormities and mischiefs as be hurtful and +prejudicial to the commonwealth of this his land and his subjects +of the same, remembereth that, among other things, great +inconvenience daily doth increase by dissolution, and pulling down, +and wilful waste of houses and towns within this his realm, and +laying to pasture lands, which continually have been in tilth, +WHEREBY IDLENESS, THE GROUND AND BEGINNING OF ALL MISCHIEF, daily +do increase; for where, in some towns 200 persons were occupied, +and lived by those lawful labors, now there be occupied two or +three herdsmen, and the residue full of idleness. The husbandry, +which is one of the greatest commodities of the realm, is greatly +decayed. Churches destroyed, the service of God withdrawn, the +bodies there buried not prayed for, the patrons and curates +wronged, the defence of the land against outward enemies feebled +and impaired, to the great displeasure of God, the subversion of +the policy and good rule of this land, if remedy be not hastily +therefor purveyed: Wherefore, the King, our Sovereign Lord, by the +assent and advice, etc., etc., ordereth, enacteth, and establisheth +that no person, what estate, degree, or condition he be, that hath +any house or houses, that at any time within the past three years +hath been, or that now is, or heretofore shall be, let to farm with +twenty acres of land at least, or more, laying in tillage or +husbandry; that the owners of any such house shall be bound to +keep, sustain, and maintain houses and buildings, upon the said +grounds and land, convenient and necessary for maintaining and +upholding said tillage and husbandry; and if any such owner or +owners of house or house and land take, keep, and occupy any such +house or house and land in his or their own hands, that the owner +of the said authority be bound in likewise to maintain houses and +buildings upon the said ground and land, convenient and necessary +for maintaining and upholding the said tillage and husbandry. On +their default, the king, or the other lord of the fee, shall +receive half of the profits, and apply the same in repairing the +houses; but shall not gain the freehold thereby." + +This act was preceded by one with reference to the Isle of Wight, 4 +Henry VII., cap. 16, passed the same session, which recites that it +is so near France that it is desirable to keep it in a state of +defence. It provides that no person shall have more than one farm, +and enacts: + +"For remedy, it is ordered and enacted that no manner of person, of +what estate, degree, or condition soever, shall take any farm more +than one, whereof the yearly rent shall not exceed ten marks; and +if any several leases afore this time have been made to any person +or persons of divers and sundry farmholds whereof the yearly value +shall exceed that sum, then the said person or persons shall choose +one farm, hold at his pleasure, and the remnant of the leases shall +be void." + +Mr. Froude remarks (History, p. 26), "An act, tyrannical in form, +was singularly justified by its consequences. The farm-houses were +rebuilt, the land reploughed, the island repeopled; and in 1546, +when the French army of 60,000 men attempted to effect a landing at +St. Helens, they were defeated and driven back by the militia, and +a few levies transported from Hampshire and the surrounding +counties." + +Lord Bacon, in his "History of the Reign of Henry VII., says: + +"Enclosures, at that time, began to be more frequent, whereby +arable land (which could not be manured without people and +families) was turned into pasture, which was easily rid by a few +herdsmen; and tenancies for years, lives, and at will (whereupon +much of the yeomanry lived) were turned into demesnes. This bred a +decay of people and (by consequence) a decay of towns, churches, +tithes, and the like. The king, likewise, knew full well, and in +nowise forgot, that there ensued withal upon this a decay and +diminution of subsidies and taxes; for the more gentlemen, ever the +lower books of subsidies. In remedying of this inconvenience, the +king's wisdom was admirable, and the parliaments at that time. +Enclosures they would not forbid, for that had been to forbid the +improvement of the patrimony of the kingdom; nor tillage they would +not compel, for that was to strive with nature and utility; but +they took a course to take away depopulating enclosures and +depopulating pasturage, and yet not by that name, or by any +imperious express prohibition, but by consequence. The ordinance +was, that all houses of husbandry, that were used with twenty acres +of ground and upward, should be maintained and kept up for ever, +together with a competent proportion of land to be used and +occupied with them; and in nowise to be severed from them, as by +another statute made afterward in his successor's time, was more +fully declared: this, upon forfeiture to be taken, not by way of +popular action, but by seizure of the land itself, by the king and +lords of the fee, as to half the profits, till the houses and land +were restored. By this means the houses being kept up, did of +necessity enforce a dweller; and the proportion of the land for +occupation being kept up, did of necessity enforce that dweller not +to be a beggar or cottager, but a man of some substance, that might +keep hinds and servants, and set the plough a-going. This did +wonderfully concern the might and mannerhood of the kingdom, to +have farms, as it were, of a standard sufficient to maintain an +able body out of penury, and did, in effect, amortise a great part +of the lands of the kingdom unto the hold and occupation of the +yeomanry or middle people, of a condition between gentlemen and +cottagers or peasants. Now, how much this did advance the military +power of the kingdom, is apparent by the true principles of war, +and the examples of other kingdoms. For it hath been held by the +general opinion of men of best judgment in the wars (howsoever some +few have varied, and that it may receive some distinction of case), +that the principal strength of an army consisteth in the infantry +or foot. And to make good infantry, it requireth men bred, not in a +servile or indigent fashion, but in some free and plentiful manner. +Therefore, if a state run most to noblemen and gentlemen, and that +the husbandman and ploughman be but as their workfolks and +laborers, or else mere cottagers (which are but housed beggars), +you may have a good cavalry, but never good stable bands of foot; +like to coppice woods, that if you leave in them standing too +thick, they will run to bushes and briars, and have little clean +underwood. And this is to be seen in France and Italy, and some +other parts abroad, where in effect all is nobles or peasantry. I +speak of people out of towns, and no middle people; and therefore +no good forces of foot: insomuch as they are enforced to employ +mercenary bands of Switzers and the like for their battalions of +foot, whereby also it comes to pass, that those nations have much +people and few soldiers. Whereas the king saw that contrariwise it +would follow, that England, though much less in territory, yet +should have infinitely more soldiers of their native forces than +those other nations have. Thus did the king secretly sow Hydra's +teeth; whereupon (according to the poet's fiction) should rise up +armed men for the service of this kingdom." + +The enactment above quoted was followed by others in that reign of +a similar character, but it would appear they were not successful. +The evil grew apace. Houses were pulled down, farms went out of +tillage. The people, evicted from their farms, and having neither +occupation nor means of living, were idle, and suffering. +Succeeding sovereigns strove also to check this disorder? and +statute after statute was passed. Among them are the 7th Henry +VIII., cap. 1. It recites: + +"That great inconveniency did daily increase by dissolution, +pulling down, and destruction of houses, and laying to pasture, +lands which customarily had been manured and occupied with tillage +and husbandry, whereby idleness doth increase; for where, in some +town-lands, hundreds of persons and their ancestors, time out of +mind, were daily occupied with sowing of corn and graynes, breeding +of cattle, and other increase of husbandry, that now the said +persons and their progeny are disunited and decreased. It further +recites the evil consequences resulting from this state of things, +and provides that all these buildings and habitations shall be re- +edificed and repaired within one year; and all tillage lands turned +into pasture shall be again restored into tillage; and in default, +half the value of the lands and houses forfeited to the king, or +lord of the fee, until they were re-edificed. On failure of the +next lord, the lord above him might seize." + +This act did not produce that increased tilth which was +anticipated. Farmers' attention was turned to sheepbreeding; and in +order to supply the deficiency of cattle, an act was passed in the +21st Henry VIII., to enforce the rearing of calves; and every +farmer was, under a penalty of 6s. 8d. (about L3 of our currency), +compelled to rear all his calves for a period of three years; and +in the 24th Henry VIII. the act was further continued for two +years. The culture of flax and hemp was also encouraged by +legislation. The 24th Henry VIII., cap. 14, requires every person +occupying land apt for tillage, to sow a quarter of an acre of flax +or hemp for every sixty acres of land, under a penalty of 3s. 4d. + +The profit which arose from sheep-farming led to the depasturage +of the land; and in order to check it, an act, 25 Henry VIII., cap. +13, was passed. It commences thus: + +"Forasmuch as divers and sundry persons of the king's subjects of +this realm, to whom God of His goodness hath disposed great plenty +and abundance of movable substance, now of late, within few years, +have daily studied, practised, and invented ways and means how they +might gather and accumulate together into few hands, as well great +multitude of farms, as great plenty of cattle and in especial +sheep, putting such lands as they can get to pasture and not to +tillage: whereby they have not only pulled down churches and towns, +and enhanced the old rates of the rents of possessions of this +realm, or else brought it to such excessive fines that no poor man +is able to meddle with it, but have also raised and enhanced the +prices of all manner of corn, cattle, wool, pigs, geese, hens, +chickens, eggs, and such commodities almost double above the prices +which hath been accustomed, by reason whereof a marvellous +multitude of the poor people of this realm be not able to provide +meat, drink, and clothes necessary for themselves, their wives, and +children, but be so discouraged with misery and poverty, that they +fall daily to theft, robbery, and other inconveniences, or +pitifully die for hunger and cold; and it is thought by the king's +humble and loving subjects, that one of the greatest occasions that +moveth those greedy and covetous people so to accumulate and keep +in their hands such great portions and parts of the lands of this +realm from the occupying of the poor husbandmen, and so use it in +pasture and not in tillage, is the great profit that cometh of +sheep, which be now come into a few persons' hands, in respect of +the whole number of the king's subjects, so that some have 24,000, +some 20,000, some 10,000, some 6000, some 5000, and some more or +less, by which a good sheep for victual, which was accustomed to be +sold for 2s. 4d. or 3s. at most, is now sold for 6s., 5s., or 4s. +at the least; and a stone of clothing wool, that in some shire of +this realm was accustomed to be sold from 16d. to 20d, is now sold +for 4s. or 3s. 4d. at the least; and in some counties, where it has +been sold for 2s. 4d. to 2s. 8d., or 3s. at the most, it is now 5s. +or 4s. 8d. at the least, and so arreysed in every part of the +realm, which things thus used to be principally to the high +displeasure of Almighty God, to the decay of the hospitality of +this realm, to the diminishing king's people, and the let of the +cloth making, whereby many poor people hath been accustomed to be +set on work; and in conclusion, if remedy be not found, it may turn +to the utter destruction and dissolution of this realm which God +defend." + +It was enacted that no person shall have or keep on lands not their +own inheritance more than 2000 sheep, under a penalty of 3s. 4d. +per annum for each sheep; lambs under a year old not to be counted; +and that no person shall occupy two farms. + +Further measures appeared needful to prevent the evil; and the 27th +Henry VIII., cap. 22, states that the 4th Henry VII., cap. 19, for +keeping houses in repair, and for the tillage of the land, had been +enforced on lands holden of the king, but neglected by other lords. +It, therefore, enacted that the king shall have the moiety of the +profits of lands converted from tillage to pasture, since the +passing of the 4th Henry VII., until a proper house is built, and +the land returned to tillage; and in default of the immediate lord +taking the profits as under that act, the king might take the same. +This act extended to the counties of Lincoln, Nottingham, +Leicester, Warwick, Rutland, Northampton, Bedford, Buckingham, +Oxford, Berkshire, Isle of Wight, Hertford, and Cambridge. + +The simple fact was, that those who had formerly paid the rent of +their land by service as soldiers were without the capital or means +of paying rent in money; they were evicted and became vagrants. +Henry VIII. took a short course with these vagrants, and it is +asserted upon apparently good authority that in the course of his +reign, thirty-six years, he hanged no less than 72,000 persons for +vagrancy, or at the rate of 2000 per annum. The executions in the +reign of his daughter, Queen Elizabeth, had fallen to from 300 to +400 per annum. + +32 Henry VIII., cap. 1, gave powers of bequest with regard to land; +as it explains the change it effected, I quote it: + +"That all persons holding land in socage not having any lands +holden by knight service of the king in chief, be empowered to +devise and dispose of all such socage lands, and in like case, +persons holding socage lands of the king in chief, and also of +others, and not having the lands holden by knight service, saving +to the king, all his right, title, and interest for primer seizin, +reliefs, fines for alienations, etc. Persons holding lands of the +king by knight's service in chief were authorized to devise two +third parts thereof, saving to the king wardship, primer seizin, of +the third paid, and fines for alienation of the whole lands. +Persons holding lands by knight's service in chief, and also other +lands by knight's service, or otherwise may in like manner devise +two third part thereof, saving to the king wardship of the third, +and fines for alienation of the whole. Persons holding land of +others than the king by knight's service, and also holding socage +lands, may devise two third parts of the former and the whole of +the latter, saving to the lord his wardship of the third part. +Persons holding lands of the king by knight's service but not in +chief, or so holding of the king and others, and also holding +socage lands, may in like manner devise two thirds of the former +and the whole of the latter, saving to the king the wardship of the +third part, and also to the lords; and the king or the other lords +were empowered to seize the one third part in case of any +deficiency." + +The 34th and 35th Henry VIII., cap. 5, was passed to remove some +doubts which had arisen as to the former statute; it enacts: + +"That the words estates of inheritance should only mean estates in +fee-simple only, and empowers persons seized of any lands, etc., in +fee-simple solely, or in co-partnery (not having any lands holden +of knight's service), to devise the whole, except corporations. +Persons seized in fee-simple of land holden of the king by knight's +service may give or devise two thirds thereof, and of his other +lands, except corporation, such two thirds to be ascertained by the +divisor or by commission out of the Court of Ward and Liveries. The +king was empowered to take his third land descended to the heir in +the first place, the devise in gift remaining good for the two +thirds; and if the land described were insufficient to answer such +third, the deficiency should be made up out of the two thirds." + +"The next attack," remarks Sir William Blackstone, vol. ii., p. +117, "which they suffered in order of time was by the statute 32 +Henry VIII., c. 28, whereby certain leases made by tenants in tail, +which do not tend to prejudice the issue, were allowed to be good +in law and to bind the issue in tail. But they received a more +violent blow the same session of Parliament by the construction put +upon the statute of fines by the statute 32 Henry VIII., cap. 36, +which declares a fine duly levied by tenant in tail to be a +complete bar to him and his heirs and all other persons claiming +under such entail. This was evidently agreeable to the intention of +Henry VII., whose policy was (before common recovery had obtained +their full strength and authority) to lay the road as open as +possible to the alienation of landed property, in order to weaken +the overgrown power of his nobles. But as they, from the opposite +reasons, were not easily brought to consent to such a provision, it +was therefore couched in his act under covert and obscure +expressions; and the judges, though willing to construe that +statute as favorably as possible for the defeating of entailed +estates, yet hesitated at giving fines so extensive a power by mere +implication when the statute DE DONIS had expressly declared that +they should not be a bar to estates-tail. But the statute of Henry +VIII., when the doctrine of alienation was better received, and the +will of the prince more implicitly obeyed than before, avowed and +established that intention." + +Fitzherbert, one of the judges of the Common Pleas in the reign of +Henry VIII., wrote a work on surveying and husbandry. It contains +directions for draining, clearing, and inclosing a farm, and for +enriching the soil and reducing it to tillage. Fallowing before +wheat was practised, and when a field was exhausted by grain it was +allowed to rest. Hollingshed estimated the usual return as 16 to 20 +bushels of wheat per acre; prices varied very greatly, and famine +was of frequent recurrence. Leases began to be granted, but they +were not effectual to protect the tenant from the entry of +purchasers nor against the operation of fictitious recoveries. + +In the succeeding reigns the efforts to encourage tillage and +prevent the clearing of the farms were renewed, and among the +enactments passed were the following: + +5 Edward VI., cap. 5, for the better maintenance of tillage and +increase of corn within the realm, enacts: + +"That there should be, in the year 1553, as much land, or more, put +wholly in tillage as had been at any time since the 1st Henry +VIII., under a penalty of 5s. per acre to the king; and in order to +secure this, it appoints commissioners, who were bound to ascertain +by inquests what land was in tillage and had been converted from +tillage into pasture. The commission issued precepts to the +sheriffs, who summoned jurors, and the inquests were to be +returned, certified, to the Court of Exchequer. Any prosecution for +penalties should take place within three years, and the act +continues for ten years." + +2 and 3 Philip and Mary, cap. 2, recites the former acts of 4 Henry +VII., cap. 19, etc,, which it enforces. It enacts: + +"That as some doubts had arisen as to the interpretation of the +words twenty acres of land, the act should apply to houses with +twenty acres of land, according to the measurement of the ancient +statute; and it appoints commissioners to inquire as to all houses +pulled down and all land converted from pasture into tillage since +the 4th Henry VII. The commissioners were to take security by +recognizance from offenders, and to re-edify the houses and re- +convert the land into tillage, and to assess the tenants for life +toward the repairs. The amount expended under order of the +commissioners was made recoverable against the estate, and the +occupiers were made liable to their orders; and they had power to +commit persons refusing to give security to carry out the act." + +2 and 3 Philip and Mary, cap. 3, was passed to provide for the +increase of milch cattle, and it enacts: + +"That one milch-cow shall be kept and calf reared for every sixty +sheep and ten oxen during the following seven years." + +The 2d Elizabeth, cap. 2, confirms the previously quoted acts of 4 +Henry VII., cap. 19; 7 Henry VIII., cap. 1; 27 Henry VIII., cap. +22; 27 Henry VIII., cap. 18; and it enacts: + +"That all farm-houses belonging to suppressed monasteries should be +kept up, and that all lands which had been in tillage for four +years successively at any time since the 20th Henry VIII., should +be kept in tillage under a penalty of 10s. per acre, which was +payable to the heir in reversion, or in case he did not levy it, to +the Crown." + +31 Elizabeth, cap. 7, went further; and in order to provide +allotments for the cottagers, many of whom were dispossessed from +their land, it provided: + +"For avoiding the great inconvenience which is found by experience +to grow by the erecting and building of great number of cottages, +which daily more and more increased in many parts of the realm, it +was enacted that no person should build a cottage for habitation or +dwelling, nor convert any building into a cottage, without +assigning and laying thereto four acres of land, being his own +freehold and inheritance, lying near the cottage, under a penalty +of L10; and for upholding any such cottages, there was a penalty +imposed of 40s. a month, exception being made as to any city, town, +corporation, ancient borough, or market town; and no person was +permitted to allow more than one family to reside in each cottage, +under a penalty of 10s. per month." + +The 39th Elizabeth, cap. 2, was passed to enforce the observance of +these conditions. It provides: + +"That all lands which had been in tillage shall be restored thereto +within three years, except in cases where they were worn out by too +much tillage, in which case they might be grazed with sheep; but in +order to prevent the deterioriation of the land, it was enacted +that the quantity of beeves or muttons sold off the land should not +exceed that which was consumed in the mansion-house." + +In these various enactments of the Tudor monarchs we may trace the +anxious desire of these sovereigns to repair the mistake of Henry +VII., and to prevent the depopulation of England. A similar mistake +has been made in Ireland since 1846, under which the homes of the +peasantry have been prostrated, the land thrown out of tillage, and +the people driven from their native land. Mr. Froude has the +following remarks upon this legislation: + +"Statesmen (temp. Elizabeth) did not care for the accumulation of +capital. They desired to see the physical well-being of all classes +of the commonwealth maintained in the highest degree which the +producing power of the country admitted. This was their object, and +they were supported in it by a powerful and efficient majority of +the nation. At one time Parliament interfered to protect employers +against laborers, but it was equally determined that employers +should not be allowed to abuse their opportunities; and this +directly appears from the 4th and 5th Elizabeth, by which, on the +most trifling appearance of a diminution of the currency, it was +declared that the laboring man could no longer live on the wages +assigned to him by the Act of Henry VIII.; and a sliding scale was +instituted, by which, for the future, wages should be adjusted to +the price of food. The same conclusion may be gathered also +indirectly fom the acts interfering imperiously with the rights of +property where a disposition showed itself to exercise them +selfishly. + +"The city merchants, as I have said, were becoming landowners, and +some of them attempted to apply their rules of trade to the +management of landed estates. While wages were rated so high, it +answered better as a speculation to convert arable land into +pasture, but the law immediately stepped in to prevent a proceeding +which it regarded as petty treason to the state. Self-protection is +the first law of life, and the country, relying for its defence on +an able-bodied population, evenly distributed, ready at any moment +to be called into action, either against foreign invasion or civil +disturbance, it could not permit the owners of land to pursue, for +their own benefit, a course of action which threatened to weaken +its garrisons. It is not often that we are able to test the wisdom +of legislation by specific results so clearly as in the present +instance. The first attempts of the kind which I have described +were made in the Isle of Wight early in the reign of Henry VII. +Lying so directly exposed to attacks by France, the Isle of Wight +was a place which it was peculiarly important to keep in a state of +defence, and the 4th Henry VII., cap. 16, was passed to prevent the +depopulation of the Isle of Wight, occasioned by the system of +large farms." + +The city merchants alluded to by Froude seem to have remembered +that from the times of Athelwolf, the possession of a certain +quantity of land, with gatehouse, church, and kitchen, converted +the ceorl (churl) into a thane. + +It is difficult to estimate the effect which the Tudor policy had +upon the landholding of England. Under the feudal system, the land +was held in trust and burdened with the support of the soldiery. +Henry VII., in order to weaken the power of the nobles, put an end +to their maintaining independent soldiery. Thus landlords' incomes +increased, though their material power was curtailed. It would not +have been difficult at this time to have loaded these properties +with annual payments equal to the cost of the soldiers which they +were bound to maintain, or to have given each of them a farm under +the Crown, and strict justice would have prevented the landowners +from putting into their pockets those revenues which, according to +the grants and patents of the Conqueror and his successors, were +specially devoted to the maintenance of the army. Land was released +from the conditions with which it was burdened when granted. This +was not done by direct legislation but by its being the policy of +the Crown to prevent "king-makers" arising from among the +nobility. The dread of Warwick influenced Henry. He inaugurated a +policy which transferred the support of the army from the lands, +which should solely have borne it, to the general revenue of the +country. Thus he relieved one class at the expense of the nation. +Yet, when Henry was about to wage war on the Continent, he called +all his subjects to accompany him, under pain of forfeiture of +their lands; and he did not omit levying the accustomed feudal +charge for knighting his eldest son and for marrying his eldest +daughter. The acts to prevent the landholder from oppressing the +occupier, and those for the encouragement of tillage, failed. The +new idea of property in land, which then obtained, proved too +powerful to be altered by legislation. + +Another change in the system of landholding took place in those +reigns. Lord Cromwell, who succeeded Cardinal Wolsey as minister to +Henry VIII., had land in Kent, and he obtained the passing of an +act (31 Henry VIII., cap. 2) which took his land and that of other +owners therein named, out of the custom of gavelkind (gave-all- +kind), which had existed in Kent from before the Norman Conquest, +and enacted that they should descend according to common law in +like manner as lands held by knight's service. + +The suppression of the RELIGIOUS HOUSES gave the Crown the control +of a vast quantity of land. It had, with the consent of the Crown, +been devoted to religion by former owners. The descendants of the +donors were equitably entitled to the land, as it ceased to be +applied to the trust for which it was given, but the power of the +Crown was too great, and their claims were refused. Had these +estates been applied to purposes of religion or education they +would have formed a valuable fund for the improvement of the +people; but the land itself, as well as the portion of tithes +belonging to the religious houses, was conferred upon favorites, +and some of the wealthiest nobles of the present day trace their +rise and importance to the rewards obtained by their ancestors out +of the spoils of these charities. + +The importance of the measures of the Tudors upon the system of +land-holding can hardly be exaggerated. An impulse of self-defence +led them to lessen the physical force of the oligarchy by relieving +the land from the support of the army, and enabling them to convert +to their own use the income previously applied to the defence of +the realm. This was a bribe, but it brought its own punishment. The +eviction of the working farmers, the demolition of their dwellings, +the depopulation of the country, were evils of most serious +magnitude; and the supplement of the measures which produced such +deplorable results was found in the permanent establishment of a +taxation for the SUPPORT of the POOR. Yet the nation reeled under +the depletion produced by previous mistaken legislation, and all +classes have been injured by the transfer of the support of the +army from the land held by the nobles to the income of the people. + +Side by side, with the measures passed, to prevent the Clearing of +the Land, arose the system of POOR LAWS. Previous to the +Reformation the poor were principally relieved at the religious +houses. The destruction of small farms, and the eviction of such +masses of the people, which commenced in the reign of Henry VII., +overpowered the resources of these establishments; their +suppression in the reigns of Henry VIII. and Elizabeth aggravated +the evil. The indiscriminate and wholesale execution of the poor +vagrants by the former monarch only partially removed the evil, and +the statute-book is loaded with acts for the relief of the +destitute poor. The first efforts were collections in the churches; +but voluntary alms proving insufficient, the powers of the +churchwardens were extended, and they were directed and authorized +to assess the parishioners according to their means, and thus arose +a system which, though benevolent in its object, is a slur upon our +social arrangements. Land, the only source of food, is rightly +charged with the support of the destitute. The necessity for such +aid arose originally from their being evicted therefrom. The charge +should fall exclusively upon the rent receivers, and in no case +should the tiller of the soil have to pay this charge either +directly or indirectly. It is continued by the inadequacy of wages, +and the improvidence engendered by a social system which arose out +of injustice, and produced its own penalty. + +Legislation with regard to the poor commenced contemporaneous with +the laws against the eviction of the small farmers. I have already +recited some of the laws to preserve small holdings; I now pass to +the acts meant to compel landholders to provide for those whom they +had dispossessed. In 1530 the act 22 Henry VIII., cap. 12, was +passed; it recites: + +"Whereas in all places through the realm of England, vagabonds and +beggars have of long time increased, and daily do increase, in +great and excessive numbers by THE OCCASION OF IDLENESS, THE MOTHER +AND ROOT OF ALL VICES, [Footnote: See 4 Henry VII., cap, 19, ante, +p. 27, where the same expression occurs, showing that it was +throwing the land out of tilth that occasioned pauperism.] whereby +hath insurged and sprung, and daily insurgeth and springeth, +continual thefts, murders, and other heinous offences and great +enormities, to the high displeasure of God, the inquietation and +damage of the king and people, and to the marvellous disturbance of +the commonweal of the realm." + +It enacts that justices may give license to impotent persons to beg +within certain limits, and, if found begging out of their limits, +they shall be set in the stocks. Beggars without license to be +whipped or set in the stocks. All persons able to labor, who shall +beg or be vagrant, shall be whipped and sent to the place of their +birth. Parishes to be fined for neglect of the constables. + +37 Henry VIII., cap. 23, continued this act to the end of the +ensuing Parliament. + +1 Edward VI., cap. 3, recites the increase of idle vagabonds, and +enacts that all persons loitering or wandering shall be marked with +a V, and adjudged a slave for two years, and afterward running away +shall become a felon. Impotent persons were to be removed to the +place where they had resided for three years, and allowed to beg. A +weekly collection was to be made in the churches every Sunday and +holiday after reading the gospel of the day, the amount to be +applied to the relief of bedridden poor. + +5 and 6 Edward VI., cap. 2, directs the parson, vicar, curate, and +church-wardens, to appoint two collectors to distribute weekly to +the poor. The people were exhorted by the clergy to contribute; +and, if they refuse, then, upon the certificate of the parson, +vicar, or curate, to the bishop of the diocese, he shall send for +them and induce him or them to charitable ways. + +2 and 3 Philip and Mary, cap. 5, re-enacts the former, and requires +the collectors to account quarterly; and where the poor are too +numerous for relief, they were licensed by a justice of the peace +to beg. + +5 Elizabeth, cap. 3, confirms and renews the former acts, and +compels collectors to serve under a penalty of L10. Persons +refusing to contribute their alms shall be exhorted, and, if they +obstinately refuse, shall be bound by the bishop to appear at the +next general quarter session, and they may be imprisoned if they +refuse to be bound. + +The 14th Elizabeth, cap. 5, requires the justices of the peace to +register all aged and impotent poor born or for three years +resident in the parish, and to settle them in convenient +habitations, and ascertain the weekly charge, and assess the amount +on the inhabitants, and yearly appoint collectors to receive and +distribute the assessment, and also an overseer of the poor. This +act was to continue for seven years. + +The 18th Elizabeth, cap. 3, provides for the employment of the +poor. Stores of wool, hemp, flax, iron, etc., to be provided in +cities and towns, and the poor set to work. It empowered persons +possessed of land in free socage to give or devise same for the +maintenance of the poor. + +The 39th Elizabeth, cap. 3, and the 43d Elizabeth, cap. 2, extended +these acts, and made the assessment compulsory. + +I shall ask you to compare the date of these several laws for the +relief of the destitute poor with the dates of the enactments +against evictions. You will find they run side by side. + +[Footnote: The following tables of the acts passed against +eviction, and enacting the support of the poor, show that they were +contemporaneous: + + Against Evictions. + 4 Henry VII., Cap. 19. + 7 Henry VIII, Cap. 1. + 21 Henry VIII, + 24 Henry VIII, Cap. 14. + 25 Henry VIII, Cap. 13. + 27 Henry VIII, Cap. 22. + 5 Edward VI., Cap. 2. + 2 and 3 Philip and Mary, Cap. 2. + 2 and 3 Philip and Mary, Cap. 3. + 2 Elizabeth, Cap. 2. + 31 Elizabeth, Cap. 7. + 39 Elizabeth, Cap. 2. + + + Enacting Poor Laws. + 22 Henry VIII., Cap. 12. + 37 Henry VIII., Cap. 23. + 1 Edward VI., Cap. 3. + 5 and 6 Edward VI., Cap. 2. + 2 and 4 Philip and Mary, Cap. 5. + 5 Elizabeth, Cap. 3. + 14 Elizabeth, Cap. 5. + 18 Elizabeth, Cap. 3. + 39 Elizabeth, Cap. 3. + 43 Elizabeth, Cap. 2.] + +I have perhaps gone at too great length into detail; but I think I +could not give a proper picture of the alteration in the system of +landholding or its effects without tracing from the statute-book +the black records of these important changes. The suppression of +monasteries tended greatly to increase the sufferings of the poor, +but I doubt if even these institutions could have met the enormous +pressure which arose from the wholesale evictions of the people. +The laws of Henry VII and Henry VIII., enforcing the tillage of the +land, preceded the suppression of religious houses, and the act of +the latter monarch allowing the poor to beg was passed before any +steps were taken to close the convents. That measure was no doubt +injurious to the poor, but the main evil arose from other causes. +The lands of these houses, when no longer applicable to the purpose +for which they were given, should have reverted to the heirs of the +donors, or have been applied to other religious or educational +purposes. The bestowal of them upon favorites, to the detriment +alike of the State, the Church, the Poor, and the Ignorant, was an +abuse of great magnitude, the effect of which is still felt. The +reigns of the Tudors are marked with three events affecting the +land--viz.: + +1st. Relieving it of the support of the army; + +2d. Burdening of it with the support of the poor; + +3d. Applying the monastic lands to private uses. + +The abolition of retainers, while it relieved the land of the +nobles from the principal charge thereon, did not entirely abolish +knight's service. The monarch was entitled to the care of all +minors, to aids on the marriage or knighthood of the eldest son, to +primerseizin or a year's rent upon the death of each tenant of the +Crown. These fees were considerable, and were under the care of the +Court of Ward and Liveries. + +The artisan class had, however, grown in wealth, and they were +greatly strengthened by the removal from France of large numbers of +workmen in consequence of the revocation of the Edict of Nantes. +These prosperous tradespeople became landowners by purchase, and +thus tended to replace the LIBERI HOMINES, or FREEMEN, who had been +destroyed under the wars of the nobles, which effaced the landmarks +of English society. The liberated serfs attained the position of +paid farm-laborers; had the policy of Elizabeth, who enacted that +each of their cottages should have an allotment of four acres of +land, been carried out, it would have been most beneficial to the +state. + +The reign of this family embraced one hundred and eighteen years, +during which the increase of the population was about twenty-five +per cent. When Henry VII. ascended the throne in 1485 it was +4,000,000, and on the death of Queen Elizabeth in 1603 it had +reached 5,000,000, the average increase being about 8000 per annum. +The changes effected in the condition of the farmers' class left +the mass of the people in a far worse state at the close than at +the commencement of their rule. + + + + + +VII. THE STUARTS. + + +The accession of the Stuarts to the throne of England took place +under peculiar circumstances. The nation had just passed through +two very serious struggles--one political, the other religious. The +land which had been in the possession of religious communities, +instead of being retained by the state for educational or religious +purposes, had been given to favorites. A new class of ownership had +been created--the lay impropriators of tithes. The suppression of +retainers converted land into a quasi property. The extension to +land of the powers of bequest gave the possessors greater +facilities for disposing thereof. It was relieved from the +principal feudal burden, military service, but remained essentially +feudal as far as tenure was concerned. Men were no longer furnished +to the state as payment of the knight's fee; they were cleared off +the land, to make room for sheep and oxen, England being in that +respect about two hundred years in advance of Ireland, though +without the outlet of emigration. Vagrancy and its attendant evils +led to the Poor Law. + +James I. and his ministers tried to grapple with the altered +circumstances, and strove to substitute and equitable Crown rent or +money payment for the existing and variable claims which were +collected by the Court of Ward and Livery. The knight's fee then +consisted of twelve plough-lands, a more modern name for "a hide of +land." The class burdened with knight's service, or payments in +lieu thereof, comprised 160 temporal and 26 spiritual lords, 800 +barons, 600 knights, and 3000 esquires. The knight's fee was +subject to aids, which were paid to the Crown upon the marriage of +the king's son or daughter. Upon the death of the possessor, the +Crown received primer-seizen a year's rent. If the successor was an +infant, the Crown under the name of Wardship, took the rents of the +estates. If the ward was a female, a fine was levied if she did not +accept the husband chosen by the Crown. Fines on alienation were +also levied, and the estates, though sold, became escheated, and +reverted to the Crown upon the failure of issue. These various +fines kept alive the principle that the lands belonged to the Crown +as representative of the nation; but, as they varied in amount, +James I. proposed to compound with the tenants-in-fee, and to +convert them into fixed annual payments. The nobles refused, and +the scheme was abandoned. + +In the succeeding reign, the attempt to stretch royal power beyond +its due limits led to resistance by force, but it was no longer a +mere war of nobles; their power had been destroyed by Henry VII. +The Stuarts had to fight the people, with a paid army, and the +Commons, having the purse of the nation, opposed force to force. +The contest eventuated in a military protectorship. Many of the +principal tenants-in-fee fled the country to save their lives. +Their lands were confiscated and given away; thus the Crown rights +were weakened, and Charles II. was forced to recognize many of the +titles given by Cromwell; he did not dare to face the convulsion +which must follow an expulsion of the novo homo in posession of the +estates of more ancient families; but legislation went further--it +abolished all the remaining feudal charges. The Commons appear to +have assented to this change, from a desire to lessen the private +income of the Sovereign, and thus to make him more dependent upon +Parliament, This was done by the 12th Charles II., cap. 24. It +enacts: + +"That the Court of Ward and Liveries, primer seizin, etc., and all +fines for alienation, tenures by knight's service, and tenures in +capite, be done away with and turned into fee and common socage, +and discharged of homage, escuage, aids, and reliefs. All future +tenures created by the king to be in free and common socage, +reserving rents to the Crown and also fines on alienation. It +enables fathers to dispose of their children's share during their +minority, and gives the custody of the personal estate to the +guardians of such child, and imposes in lieu of the revenues raised +in the Court of Ward and Liveries, duties upon beer and ale." + +The land was relieved of its legitimate charge, and a tax on beer +and ale imposed instead! the landlords were relieved at the expense +of the people. The statute which accomplished this change is +described by Blackstone as + +"A greater acquisition to the civil property of this kingdom than +even Magna Charta itself, since that only pruned the luxuriances +that had grown out of military tenures, and thereby preserved them +in vigor; but the statute of King Charles extirpated the whole, and +demolished both root and branches," + +The efforts of James II. to rule contrary to the wish of the +nation, led to his expulsion from the throne, and showed that, in +case of future disputes as to the succession, the army, like the +Praetorian Guards of Rome, had the election of the monarch. The Red +and White Roses of the Plantagenets reappeared under the altered +names of Whig and Tory; but it was proved that the decision of a +leading soldier like the Duke of Marlborough would decide the army, +and that it would govern the nation; fortunately the decision was a +wise one, and was ratified by Parliament: thus FORCE governed LAW, +and the decision of the ARMY influenced the SENATE. William III. +succeeded, AS AN ELECTED MONARCH, under the Bill of Rights. This +remarkable document contains no provision, securing the tenants-in- +fee in their estates; and I have not met with any treatise dealing +with the legal effects of the eviction of James II. All patents +were covenants between the king and his heirs, and the patentees +and their heirs. The expulsion of the sovereign virtually destroyed +the title; and an elected king, who did not succeed as heir, was +not bound by the patents of his predecessors, nor was William +asked, by the Bill of Rights, to recognize any of the existing +titles. This anomalous state of things was met in degree by the +statute of prescriptions, but even this did not entirely cure the +defect in the titles to the principal estates in the Kingdom. The +English tenants in decapitating one landlord and expelling another, +appear to have destroyed their titles, and then endeavored to renew +them by prescriptive right; but I shall not pursue this topic +further, though it may have a very definite bearing upon the +question of landholding. + +It may not be uninteresting to allude rather briefly to the state +of England at the close of the seventeenth century. Geoffrey King, +who wrote in 1696, gives the first reliable statistics about the +state of the country. He estimated the number of houses at +1,300,000, and the average at four to each house, making the +population 5,318,000. He says there was but seven acres of land for +each person, but that England was six times better peopled than the +known world, and twice better than Europe. He calculated the total +income at L43,500,000, of which the yearly rent of land was +L10,000,000. The income was equal to L7, 18s. 0d. per head, and the +expense L7, 11s. 4d.; the yearly increase, 6s. 8d. per head, or +L1,800,000 per annum. He estimated the annual income of 160 +temporal peers at L2800 per annum, 26 spiritual peers at L1300, of +800 baronets at L800, and of 600 knights at L650. + +He estimated the area at 39,000,000 acres (recent surveys make it +37,319,221). He estimated the arable land at 11,000,000 acres, and +pasture and meadow at 10,000,000, a total of 21,000,000. The area +under all kinds of crops and permanent pasture was, in 1874, +26,686,098 acres; therefore about five and a half million acres +have been reclaimed and added to the arable land. As the +particulars of his estimate may prove interesting, I append them in +a note. + +[Footnote: Geoffrey King thus classifies the land of England and +Wales: + + + + Acres. Value/Acre Rent + +Arable Land, 11,000,000 L0 5 10 L3,200,000 +Pasture and Meadow, 10,000,000 0 9 0 4,500,000 +Woods and Coppices, 3,000,000 0 5 0 750,000 +Forests, Parks, and Covers, 3,000,000 0 3 6 550,000 +Moors, Mountains, and Barren Lands, 10,000,000 0 1 0 500,000 +Houses, Homesteads, Gardens, Orchards,) 1,000,000 (The Land, 450,000 +Churches, and Churchyards, ) (The Buildings, 2,000,000 +Rivers, Lakes, Meres, and Ponds, 500,000 0 2 0 50,000 +Roadways and Waste Lands, 500,000 + ---------- ------- ---------- + 39,000,000 L0 6 0 L12,000,000 + +He estimates the live stock thus: + Value without + the Skin +Beeves, Stirks, and Calves, 4,500,000 L2 0 0 L9,000,000 +Sheep and Lambs, 11,000,000 0 8 0 4,400,000 +Swine and Pigs, 2,000,000 0 16 0 1,600,000 +Deer, Fawns, Goats and Kids, 247,900 + + 15,247,900 + +Horses, 1,200,000 2 0 0 3,000,000 +Value of Skins, 2,400,000 + ----------- + L20,647,900 + +The annual produce he estimated as follows: + + Acres Rent Produce +Grain, 10,000,000 L3,000,000 L8,275,000 +Hemp, Flax, etc., 1,000,000 200,000 2,000,000 +Butter, Cheese, and Milk, ) ( 2,500,000 +Wool, ) ( 2,000,000 +Horses bred, ) ( 250,000 +Flesh Meat, )- 29,000,000 6,800,000 -( 3,500,000 +Tallow and Hides, ) ( 600,000 +Hay Consumed, ) ( 2,300,000 +Timber, ) ( 1,000,000 + ---------- ----------- ----------- +Total 39,000,000 L10,000,000 L22,275,000] + +He places the rent of the corn land at about one third of the +produce, and that of pasture land at rather more. The price of meat +per lb. was: beef 1 and 1/8d.; mutton, 2 and 1/4d.; pork, 3d.; +venison, 6d.; hares, 7d.; rabbits, 6d. The weight of flesh-meat +consumed was 398,000,000 lbs., it being 72 lbs. 6 oz. for each +person, or 3 and 1/6 oz. daily. I shall have occasion to contrast +these figures with those lately published when I come to deal with +the present; but a great difference has arisen from the alteration +in price, which is owing to the increase in the quantity of the +precious metals. + +The reign of the last sovereign of this unfortunate race was +distinguished by the first measures to inclose the commons and +convert them into private property, with which I shall deal +hereafter. + +The changes effected in the land laws of England during the reigns +of the Stuarts, a period of 111 years, were very important. The act +of Charles II. which abolished the Court of Ward and Liveries, +appeared to be an abandonment of the rights of the people, as +asserted in the person of the Crown; and this alteration also +seemed to give color of right to the claim which is set up of +property in land, but the following law of Edward III. never was +repealed: + +"That the king is the universal lord and original proprietor of all +land in his kingdom, and that no man doth or can possess any part +of it but what has mediately or immediately been derived as a gift +from him to be held on feodal service." + +No lawyer will assert for any English subject a higher title than +tenancy-in-fee, which bears the impress of holding and denies the +assertion of ownership. + +The power of the nobles, the tenants-in-fee, was strengthened by an +act passed in the reign of William and Mary, which altered the +relation of landlord and tenant. Previous thereto, the landlord had +the power of distraint, but he merely held the goods he seized to +compel the tenant to perform personal service. It would be +impossible for a tenant to pay his rent if his stock or implements +were sold off the land. As the Tudor policy of money payments +extended, the greed for pelf led to an alteration in the law, and +the act of William and Mary allowed the landlord to sell the goods +he had distrained. The tenant remained in possession of the land +without the means of tilling it, which was opposed to public +policy. This power of distraint was, however, confined to holdings +in which there were leases by which the tenant covenanted to allow +the landlord to distrain his stock and goods in default of payment +of rent. The legislation of the Stuarts was invariably favorable to +the possessor of land and adverse to the rights of the people. The +government during the closing reigns was oligarchical, so much so, +that William III., annoyed at the restriction put upon his kingly +power, threatened to resign the crown and retire to Holland; but +the aristocracy were unwilling to relax their claims, and they +secured by legislation the rights they appeared to have lost by the +deposition of the sovereign. + +The population had increased from 5,000,000 in 1603 to 5,750,000 in +1714, being an average increase of less than 7000 per annum. + + + + + +VIII. THE HOUSE OF HANOVER. + + +The first sovereign of the House of Hanover ascended the throne not +by right of descent but by election; the legitimate heir was set +aside, and a distant branch of the family was chosen, and the +succession fixed by act of Parliament; but it is held by jurists +that every Parliament is sovereign and has the power of repealing +any act of any former Parliament. The beneficial rule of some of +the latter monarchs of this family has endeared them to the people, +but the doctrine of reigning by divine right, the favorite idea of +the Stuarts, is nullified, when the monarch ascends the throne by +statute law and not by succession or descent. + +The age of chivalry passed away when the Puritans defeated the +Cavaliers. The establishment of standing armies and the creation of +a national debt, went to show that money, not knighthood or +knight's service, gave force to law. The possession of wealth and +of rent gave back to their possessors even larger powers than those +wrested from them by the first Tudor king. The maxim that "what was +attached to the freehold belonged to the freehold," gave the +landlords even greater powers than those held by the sword, and of +which they were despoiled. Though nominally forbidden to take part +in the election of the representatives of the Commons, yet they +virtually had the power, the creation of freehold, the substance +and material of electoral right; and consequently both Houses of +Parliament were essentially landlord, and the laws, for the century +which succeeded the ascension of George I., are marked with the +assertion of landlord right which is tenant wrong. + +Among the exhibitions of this influence is an act passed in the +reign of George II., which extended the power of distraint for +rent, and the right to sell the goods seized--to all tenancies. +Previous legislation confined this privilege solely to cases in +which there were leases, wherein the tenant, by written contract, +gave the landlord power to seize in case of non-payment of rent, +but there was no legal authority to sell until it was given by an +act passed in the reign of William III. The act of George II. +presumed that there was such a contract in all cases of parole +letting or tenancy-at-will, and extended the landlord's powers to +such tenancies. It is an anomaly to find that in the freest country +in the world such an arbitrary power is confided to individuals, or +that the landlord-creditor has the precedence over all other +creditors, and can, by his own act, and without either trial or +evidence, issue a warrant that has all the force of the solemn +judgment of a court of law; and it certainly appears unjust to +seize a crop, the seed for which is due to one man, and the manure +to another, and apply it to pay the rent. But landlordism, +intrusted with legislative power, took effectual means to preserve +its own prerogative, and the form of law was used by parliaments, +in which landlord influence was paramount, to pass enactments which +were enforced by the whole power of the state, and sustained +individual or class rights. + +The effect of this measure was most unfortunate; it encouraged the +letting of lands to tenants-at-will or tenants from year to year, +who could not, under existing laws, obtain the franchise or power +to vote--they were not FREEMEN, they were little better than serfs. +They were tillers of the soil, rent-payers who could be removed at +the will of another. They were not even freeholders, and had no +political power--no voice in the affairs of the nation. The +landlords in Parliament gave themselves, individually by law, all +the powers which a tenant gave them by contract, while they had no +corresponding liability, and, therefore, it was their interest to +refrain from giving leases, and to make their tenantry as dependent +on them as if they were mere serfs. This law was especially +unfortunate, and had a positive and very great effect upon the +condition of the farming class and upon the nation, and people came +to think that landlords could do as they liked with their land, and +that the tenants must be creeping, humble, and servile. + +An effort to remedy this evil was made in 1832, when the occupiers, +if rented or rated at the small amount named, became voters. This +gave the power to the holding, not to the man, and the landlord +could by simple eviction deprive the man of his vote; hence the +tenants-at-will were driven to the hustings like sheep--they could +not, and dare not, refuse to vote as the landlord ordered. + +The lords of the manor, with a landlord Parliament, asserted their +claims to the commonages, and these lands belonging to the people, +were gradually inclosed, and became the possession of individuals. +The inclosing of commonages commenced in the reign of Queen Anne, +and was continued in the reigns of all the sovereigns of the House +of Hanover. The first inclosure act was passed in 1709; in the +following thirty years the average number of inclosure bills was +about three each year; in the following fifty years there were +nearly forty each year; and in the forty years of the nineteenth +century it was nearly fifty per annum. + +The inclosures in each reign were as follows: + + Acts. Acres. +Queen Anne, 2 1,439 +George I., 16 17,660 +George II., 226 318,784 +George III., 3446 3,500,000 +George IV., 192 250,000 +William IV., 72 120,000 + ---- --------- +Total, 3954 4,207,883 + +These lands belonged to the people, and might have been applied to +relieve the poor. Had they been allotted in small farms, they might +have been made the means of support of from 500,000 to 1,000,000 +families, and they would have afforded employment and sustenance to +all the poor, and thus rendered compulsory taxation under the poor- +law system unnecessary; but the landlords seized on them and made +the tenantry pay the poor-rate. + +The British Poor Law is a slur upon its boasted civilization. The +unequal distribution of land and of wealth leads to great riches +and great poverty. Intense light produces deep shade. Nowhere else +but in wealthy England do God's creatures die of starvation, +wanting food, while others are rich beyond comparison. The soil +which affords sustenance for the people is rightly charged with the +cost of feeding those who lack the necessaries of life, but the +same object would be better achieved in a different way. Poor-rates +are now a charge upon a man's entire estate, and it would be much +better for society if land to an amount equivalent to the charge +were taken from the estate and assigned to the poor. If a man is +charged with L100 a year poor-rate, it would make no real +difference to him, while it would make a vast difference to the +poor to take land to that value, put the poor to work tilling it, +allowing them to enjoy the produce. Any expense should be paid +direct by the landlord, which would leave the charge upon the land, +and exempt the improvements of the tenant, which represent his +labor, free. + +The evil has intensified in magnitude, and a permanent army of +paupers numbering at the minimum 829,281 persons, but increasing at +some periods to upward of 1,000,000, has to be provided for; the +cost, about L8,000,000 a year, is paid, not by landlords but by +tenants, in addition to the various charities founded by benevolent +persons. There are two classes relieved under this system, and +which ought to be differently dealt with--the sick and the young. +Hospitals for the former and schools for the latter ought to take +the place of the workhouse. It is difficult to fancy a worse place +for educating the young than the workhouse, and it would tend to +lessen the evil were the children of the poor trained and educated +in separate establishments from those for the reception of paupers. +Pauperism is the concomitant of large holdings of land and +insecurity of tenure. The necessity of such a provision arose, as I +have previously shown, from the wholesale eviction of large numbers +of the occupiers of land; and, as the means of supplying the need +came from the LAND, the expense should, like tithes, have fallen +exclusively upon land. The poor-rates are, however, also levied +upon houses and buildings, which represent labor. The owner of land +is the people, as represented by the Crown, and the charges thereon +next in succession to the claims of the state are the church and +the poor. + +The Continental wars at the close of the eighteenth and the +commencement of the nineteenth century had some effect upon the +system of tillage; they materially enhanced the price of +agricultural produce--rents were raised, and the national debt was +contracted, which remains a burden on the nation. + +The most important change, however, arose from scientific and +mechanical discoveries--the application of heat to the production +of motive power. As long as water, which is a non-exhaustive source +of motion, was used, the people were scattered over the land; or if +segregation took place, it was in the neighborhood of running +streams. The application of steam to the propulsion of machinery, +and the discovery of engines capable of competing with the human +hand, led to the substitution of machine-made fabrics for clothing, +in place of homespun articles of domestic manufacture. This led to +the employment of farm-laborers in procuring coals, to the removal +of many from the rural into the urban districts, to the destruction +of the principal employment of the family during the winter +evenings, and consequently effected a great revolution in the +social system. Many small freeholds were sold, the owners thinking +they could more rapidly acquire wealth by using the money +representing their occupancy, in trade. Thus the large estates +became larger, and the smaller ones were absorbed, while the +appearance of greater wealth from exchanging subterranean +substances for money, or its representative, gave rise to +ostentatious display. The rural population gradually diminished, +while the civic population increased. The effect upon the system of +landholding was triplicate. First, there was a diminution in the +amount of labor applicable to the cultivation of land; second, +there was a decrease in the amount of manure applied to the +production of food; and lastly, there was an increase in the demand +for land as a source of investment, by those who, having made money +in trade, sought that social position which follows the possession +of broad acres. Thus the descendants of the feudal aristocracy were +pushed aside by the modern plutocracy. + +This state of things had a double effect. Food is the result of two +essential ingredients--land and labor. The diminution in the amount +of labor applied to the soil, consequent upon the removal of the +laborers from the land, lessened the quantity of food; while the +consumption of that food in cities and towns, and the waste of the +fertile ingredients which should be restored to the soil, tended to +exhaust the land, and led to vast importations of foreign and the +manufacture of mineral manures. I shall not detain you by a +discussion of this aspect of the question, which is of very great +moment, consequent upon the removal of large numbers of people from +rural to urban districts; but I may be excused in saying that +agricultural chemistry shows that the soil--"perpetual man"-- +contains the ingredients needful to support human life, and feeding +those animals meant for man's use. These ingredients are seized +upon by the roots of plants and converted into aliment. If they are +consumed where grown, and the refuse restored to the soil, its +fertility is preserved; nay, more, the effect of tillage is to +increase its productive power. It is impossible to exhaust land, no +matter how heavy the crops that are grown, if the produce is, after +consumption, restored to the soil. I have shown you how, in the +reign of Queen Elizabeth, a man was not allowed to sell meat off +his land unless he brought to, and consumed on it, the same weight +of other meat. This was true agricultural and chemical economy. But +when the people were removed from country to town, when the produce +grown in the former was consumed in the latter, and the refuse +which contained the elements of fertility was not restored to the +soil, but swept away by the river, a process of exhaustion took +place, which has been met in degree by the use of imported and +artificial manures. The sewage question is taken up mainly with +reference to the health of towns, but it deserves consideration in +another aspect--its influence upon the production of food in the +nation. + +An exhaustive process upon the fertility of the globe has been set +on foot. The accumulations of vegetable mould in the primeval +forests have been converted into grain, and sent to England, +leaving permanent barrenness in what should be prolific plains; and +the deposits of the Chincha and Ichaboe Islands have been imported +in myriads of tons, to replace in our own land the resources of +which it is bereft by the civic consumption of rural produce. + +These conjoined operations were accelerated by the alteration in +the British corn laws in 1846, which placed the English farmer, who +tried to preserve his land in a state of fertility, in competition +with foreign grain--growers, who, having access to boundless fields +of virgin soil, grow grain year after year until, having exhausted +the fertile element, they leave it in a barren condition, and +resort to other parts. A competition under such circumstances +resembles that of two men of equal income, one of who appears +wealthy by spending a portion of his capital, the other +parsimonious by living within his means. Of course, the latter has +to debar himself of many enjoyments. The British farmer has +lessened the produce of grain, and consequently of meat; and the +nation has become dependent upon foreigners for meat, cheese, and +butter, as well as for bread. + +This is hardly the place to discuss a question of agriculture, but +scientific farmers know that there is a rotation of crops, +[Footnote: The agricultural returns of the United Kingdom show that +50 and 1/2 per cent of the arable land was under pasture, 24 per +cent under grain, 12 per cent under green crops and bare fallow, +and 13 per cent under clover. The rotation would, therefore, be +somewhat in this fashion: Nearly one fourth of the land in tillage +is under a manured crop or fallow, one fourth under wheat, one +fourth under clover, and one fourth under barley, oats, etc., the +succession being, first year, the manured crop; next year, wheat; +third year, clover; fourth, barley or oats; and so on.] and that as +one is diminished the others lessen. The quantity under tillage is +a multiple of the area under grain. A diminution in corn is +followed by a decrease of the extent under turnips and under +clover; the former directly affects man, the latter the meat- +affording animals. A decrease in the breadth under tillage means an +addition to the pasture land, which in this climate only produces +meat during the warm portions of the year. I must, however, not +dwell upon this topic, but whatever leads to a diminution in the +labor applied to the land lessens the production of food, and DEAR +MEAT may only be the supplement to CHEAP CORN. + +I shall probably be met with the hackneyed cry, The question is +entirely one of price. Each farmer and each landlord will ask +himself, Does it pay to grow grain? and in reply to any such +inquiry, I would refer to the annual returns. I find that in the +five years, 1842 to 1846, wheat ranged from 50s. 2d. to 57s. 9d.; +the average for the entire period being 54s. 10d. per quarter. In +the five years from 1870 to 1874 it ranged from 46s. 10d. to 58s. +8d., the average for the five years being 54s. 7d. per quarter. The +reduction in price has only been 3d. per quarter, or less than one +half per cent. + +I venture to think that there are higher considerations than mere +profit to individuals, and that, as the lands belong to the whole +state as represented by the Crown, and as they are held in trust TO +PRODUCE FOOD FOR THE PEOPLE, that trust should be enforced. + +The average consumption of grain by each person is about a quarter +(eight bushels) per annum. In 1841 the population of the United +Kingdom was 27,036,450. The average import of foreign grain was +about 3,000,000 quarters, therefore TWENTY-FOUR MILLIONS were fed +on the domestic produce. In 1871 the population was 31,513,412, and +the average importation of grain 20,000,000 quarters; therefore +only ELEVEN AND A HALF MILLIONS were supported by home produce. +Here we are met with the startling fact that our own soil is not +now supplying grain to even one half the number of people to whom +it gave bread in 1841. This is a serious aspect of the question, +and one that should lead to examination, whether the development of +the system of landholding, the absorptions of small farms and the +creation of large ones, is really beneficial to the state, or tends +to increase the supply of food. The area under grain in England in +1874 was 8,021,077. In 1696 it was 10,000,000 acres, the diminution +having been 2,000,000 acres. The average yield would probably be +FOUR QUARTERS PER ACRE, and therefore the decrease amounted to the +enormous quantity of EIGHT MILLION QUARTERS, worth L25,000,000, +which had to be imported from other countries, to fill up the void, +and feed 8,000,000 of the population; and if a war took place, +England may, like Rome, be starved into peace. + +An idea prevails that a diminution in the extent under grain +implies an increase in the production of meat. The best answer to +that fallacy lies in the great increase in the price of meat. If +the supply had increased the price would fall, but the converse has +taken place. A comparison of the figures given by Geoffrey King, in +the reign of William III., with those supplied by the Board of +Trade in the reign of Queen Victoria, illustrates this phase of the +landholding question, and shows whether the "enlightened policy" of +the nineteenth century tends to encourage the fulfilment of the +trust which applies to land--THE PRODUCTION OF FOOD. + +The land of England and Wales in 1696 and 1874 was classified as +follows: + 1696. 1874. + Acres. Acres. +Under grain, 10,000,000 8,021,077 +Pastures and meadows, 10,000,000 12,071,791 +Flax, hemp, and madder, 1,000,000 --------- +Green crops, --------- 2,895,138 +Bare fallow, --------- 639,519 +Clover --------- 2,983,733 +Orchards, 1,000,000 148,526 +Woods, coppices, etc, 3,000,000 1,552,598 +Forests, parks, and commons, 3,000,000| +Moors, mountains, and bare land, 10,000,000|- 9,006,839 +Waste, water, and road, 1,000,000| + ----------- ----------- + 39,000,000 37,319,231 + +The estimate of 1696 may be corrected by lessing the quantity of +waste land, and thus bringing the total to correspond with the +extent ascertained by actual survey, but it shows a decrease in the +extent under grain of nearly two million acres, and an increase in +the area applicable to cattle of nearly 8,000,000 acres; yet there +is a decrease in the number of cattle, though an increase in sheep. +The returns are as follows: + + 1696. 1800. 1874. +Cattle 4,500,000 2,852.428 4,305,440 +Sheep 11,000,000 26,148,000 19,859,758 +Pigs 2,000,000 (not given) 2,058,791 + +The former shows that in 1696 there were TEN MILLION acres under +grain, the latter only EIGHT MILLION acres. Two million acres were +added for cattle feeding. The former shows that the pasture land +was TEN MILLION ACRES, and that green crops and clover were +unknown. The latter that there were TWELVE MILLION ACRES under +pasture, and, in addition, that there were nearly THREE MILLION +ACRES of green crop and THREE MILLION ACRES of clover. The addition +to the cattle-feeding land was eight million acres; yet the number +of cattle in 1696 was 4,500,000, and in 1874, 4,305,400. Of sheep, +in 1696, there were 11,000,000, and in 1874, 19,889,758. The +population had increased fourfold, and it is no marvel that meat is +dear. It is the interest of agriculturists to KEEP DOWN THE +QUANTITY AND KEEP UP THE PRICE. The diminution in the area under +corn was not met by a corresponding increase in live stock--in +other words, the decrease of land under grain is not, PER SE, +followed by an increase of meat. If the area under grain were +increased, it would be preceded by an increase in the growth of +turnips, and followed by a greater growth of clover; and these +cattle-feeding products would materially add to the meat supply. + +A most important change in the system of landholding was effected +by the spread of RAILWAYS. It was brought about by the influence of +the trading as opposed to the landlord class. In their inception +they did not appear likely to effect any great alteration in the +land laws. The shareholders had no compulsory power of purchase, +hence enormous sums were paid for the land required; but as the +system extended, Parliament asserted the ownership of the nation, +over land in the possession of the individual. Acting on the idea +that no man was more than a tenant, the state took the land from +the occupier, as well as the tenant-in-fee, and gave it, not at +their own price, but an assessed value, to the partners in a +railway who traded for their mutual benefit, yet as they offered to +convey travellers and goods at a quicker rate than on the ordinary +roads, the state enabled them to acquire land by compulsion. A +general act, the Land Clauses Act, was passed in 1846, which gives +privileges with regard to the acquisition of land to the promoters +of such works as railways, docks, canals, etc. Numbers of acts are +passed every session which assert the right of the state over the +land, and transfer it from one man, or set of men, to another. It +seems to me that the principle is clear, and rests upon the +assertion of the state's ownership of the land; but it has often +struck me to ask, Why is this application of state rights limited +to land required for these objects? why not apply to the land at +each side of the railway, the principle which governs that under +the railway itself? I consider the production of food the primary +trust upon the land, that rapid transit over it is a secondary +object; and as all experience shows that the division of land into +small estates leads to a more perfect system of tillage, I think it +would be of vast importance to the entire nation if all tenants who +were, say, five years in possession were made "promoters" under the +Land Clauses Act, and thus be enabled to purchase the fee of their +holdings in the same manner as a body of railway proprietors. It +would be most useful to the state to increase the number of +tenants-in-fee--to re-create the ancient FREEMEN, the LIBERI +HOMINES--and I think it can be done without requiring the aid +either of a new principle or new machinery, by simply placing the +farmer-in-possession on the same footing as the railway +shareholder. I give at foot the draft of a bill I prepared in 1866 +for this object. + +[Footnote: A BILL TO ENCOURAGE THE OUTLAY OF MONEY UPON LAND FOB +AGRICULTURAL PURPOSES. + +Whereas it is expedient to encourage the occupiers of land to +expend money thereon, in building, drainage, and other similar +improvements; and whereas the existing laws do not give the tenants +or occupiers any sufficient security for such outlay: Be it enacted +by the Queen's Most Excellent Majesty, by and with the advice and +consent of the Lords Spiritual and Temporal, and Commons in +Parliament assembled, and by the authority of the same: + +1. That all outlay upon land for the purpose of rendering it more +productive, and all outlay upon buildings for the accommodation of +those engaged in tilling or working the same, or for domestic +animals of any sort, be, and the same is hereby deemed to be, an +outlay of a public nature. + +2. That the clauses of "The Land Clauses Consolidation Act 1845," +"with respect to the purchase of lands by agreement," and "with +respect to the purchase and taking of lands otherwise than by +agreement," and "with respect to the purchase money or compensation +coming to parties having limited interests, or prevented from +treating or not making title," shall be, and they are hereby +incorporated with this act. + +3. That every tenant or occupier who has for the past five years +been in possession of any land, tenements, or hereditaments, shall +be considered "a promoter of the undertaking within the meaning of +the said recited act, and shall be entitled to purchase the lands +which he has so occupied, 'either by agreement' 'or otherwise than +by agreement,' as provided in the said recited act." + +Then follow some details which it is unnecessary to recite here.] + +The 55th William I. secured to freemen the inheritance of their +lands, and they were not able to sell them until the act QUIA +EMPTORES of Edward I. was passed. The tendency of persons to spend +the representative value of their lands and sell them was checked +by the Mosaic law, which did not allow any man to despoil his +children of their inheritance. The possessor could only mortgage +them until the year of jubilee--the fiftieth year. In Switzerland +and Belgium, where the nobles did not entirely get rid of the +FREEMEN, the lands continued to be held in small estates. In +Switzerland there are seventy-four proprietors for every hundred +families, and in Belgium the average size of the estate is three +and a half hectares--about eight acres. These small ownerships are +not detrimental to the state. On the contrary, they tend to its +security and well-being. I have treated on this subject in my work, +"The Food Supplies of Western Europe." These small estates existed +in England at the Norman Conquest, and their perpetual continuance +was the object of the law of William I., to which I have referred. +Their disappearance was due to the greed of the nobles during the +reign of the Plantagenets, and they were not replaced by the +Tudors, who neglected to restore the men-at-arms to the position +they occupied under the laws of Edward the Confessor and William I. + +The establishment of two estates in land; one the ownership, the +other the use, may be traced to the payment of rent, to the Roman +commonwealth, for the AGER PUBLICUS. Under the feudal system the +rent was of two classes--personal service or money; the latter was +considered base tenure. The legislation of the Tudors abolished the +payment of rent by personal service, and made all rent payable in +money or in kind. The land had been burdened with the sole support +of the army. It was then freed from this charge, and a tax was +levied upon the community. Some writers have sought to define RENT +as the difference between fertile lands and those that are so +unproductive as barely to pay the cost of tillage. This far-fetched +idea is contradicted by the circumstance that for centuries rent +was paid by labor--the personal service of the vassal--and it is +now part of the annual produce of the soil inasmuch as land will be +unproductive without seed and labor, or being pastured by tame +animals, the representative of labor in taming and tending them. +Rent is usually the labor or the fruits of the labor of the +occupant. In some cases it is income derived from the labors of +others. A broad distinction exists between the rent of land, which +is a portion of the fruits or its equivalent in money, and that of +improvements and houses, which is an exchange of the labor of the +occupant given as payment for that employed in effecting +improvements or erecting houses. The latter described as messuages +were valued in 1794 at SIX MILLIONS per annum; in 1814 they were +nearly FIFETEEN MILLIONS; now they are valued at EIGHTY MILLIONS. + +[Footnote: A Parliamentary return gives the following information +as to the value of lands and messuages in 1814 and 1874: + + 1814-15. 1873-74. +Lands, L34,330,463 L49,906,866 +Messuages, 14,895,130 80,726,502 + +The increase in the value of land is hardly equal to the reduction +in the value of gold, while the increase in messuages shows the +enormous expenditure of labor.] + +The increase represents a sum considerably more than double the +national debt of Great Britain, and under the system of leases the +improvements will pass from the industrial to the landlord class. + +It seems to me to be a mistake in legislation to encourage a system +by which these two funds merge into one, and that hands the income +arising from the expenditure of the working classes over to the +tenants-in-fee without an equivalent. This proceeds from a +straining of the maxim that "what is attached to the freehold +belongs to the freehold," and was made law when both Houses of +Parliament were essentially landlord. That maxim is only partially +true: corn is as much attached to the freehold as a tree; yet one +is cut without hindrance and the other is prevented. Potatoes, +turnips, and such tubers, are only obtained by disturbing the +freehold. This maxim was at one time so strained that it applied to +fixtures, but recent legislation and modern discussions have +limited the rights of the landlord class and been favorable to the +occupier, and I look forward to such alterations in our laws as +will secure to the man who expends his labor or earnings in +improvements, an estate IN PERPETUO therein, as I think no length +of user of that which is a man's own--his labor or earnings-- +should hand over his representative improvements to any other +person. I agree with those writers who maintain that it is +prejudicial to the state that the rent fund should be enjoyed by a +comparatively small number of persons, and think it would be +advantageous to distribute it, by increasing the number of tenants- +in-fee. Natural laws forbid middlemen, who do nothing to make the +land productive, and yet subsist upon the labor of the farmer, and +receive as rent part of the produce of his toil. The land belongs +to the state, and should only be subject to taxes, either by +personal service, such as serving in the militia or yeomanry, or by +money payments to the state. + +Land does not represent CAPITAL, but the improvements upon it do. A +man does not purchase land. He buys the right of possession. In any +transfer of land there is no locking up of capital, because one man +receives exactly the amount the other expends. The individual may +lock up his funds, but the nation does not. Capital is not money. I +quote a definition from a previous work of mine, "The Case of +Ireland," p. 176: + +"Capital stock properly signifies the means of subsistence for man, +and for the animals subservient to his use while engaged in the +process of production. The jurisconsults of former times expressed +the idea by the words RES FUNGIBILES, by which they meant +consumable commodities, or those things which are consumed in their +use for the supply of man's animal wants, as contradistinguished +from unconsumable commodities, which latter writers, by an +extension of the term, in a figurative sense, have called FIXED +capital." + +All the money in the Bank of England will not make a single four- +pound loaf. Capital, as represented by consumable commodities, is +the product of labor applied to land, or the natural fruits of the +land itself. The land does not become either more or less +productive by reason of the transfer from one person to another; it +is the withdrawal of labor that affects its productiveness. + +WAGES are a portion of the value of the products of a joint +combination of employer and employed. The former advances from time +to time as wages to the latter, the estimated portion of the +increase arising from their combined operations to which he may be +entitled. This may be either in food or in money. The food of the +world for one year is the yield at harvest; it is the CAPITAL STOCK +upon which mankind exist while engaged in the operations for +producing food, clothing, and other requisites for the use of +mankind, until nature again replenishes this store. Money cannot +produce food; it is useful in measuring the distribution of that +which already exists. + +The grants of the Crown were a fee or reward for service rendered; +the donee became tenant-in-fee; being a reward, it was restricted +to a man and his heirs-male or his heirs-general; in default of +heirs-male or heirs-general, the land reverted to the Crown, which +was the donor. A sale to third parties does not affect this phase +of the question, inasmuch as it is a principle of British law that +no man can convey to another a greater estate in land than that +which he possesses himself; and if the seller only held the land as +tenant-in-fee for HIS OWN LIFE and that of HIS heirs, he could not +give a purchaser that which belonged to the Crown, the REVERSION on +default of heirs (see Statute DE DONIS, 13 Edward I., ANTE, p. 21). +This right of the sovereign, or rather of the people, has not been +asserted to the full extent. Many noble families have become +extinct, yet the lands have not been claimed, as they should have +been, for the nation. + +I should not complete my review of the subject without referring to +what are called the LAWS OF PRIMOGENITURE. I fail to discover any +such law. On the contrary, I find that the descent of most of the +land of England is under the law of contract--by deed or bequest-- +and that it is only in case of intestacy that the courts intervene +to give it to the next heir. This arises more from the construction +the judges put upon the wishes of the deceased, than upon positive +enactment. When a man who has the right of bequeathing his estate +among his descendants does not exercise that power, it is +considered that he wishes the estate to go undivided to the next +heir. In America the converse takes place: a man can leave all his +land to one; and, if he fails to do so, it is divided. The laws +relating to contracts or settlements allow land to be settled by +deed upon the children of a living person, but it is more +frequently upon the grandchildren. They acquire the power of sale, +which is by the contract denied to their parents. A man gives to +his grandchild that which he denies to his son. This cumbrous +process works disadvantageously, and it might very properly be +altered by restricting the power of settlement or bequest to living +persons, and not allowing it to extend to those who are unborn. + +It is not a little curious to note how the ideas of mankind, after +having been diverted for centuries, return to their original +channels. The system of landholding in the most ancient races was +COMMUNAL. That word, and its derivative, COMMUNISM, has latterly +had a bad odor. Yet all the most important public works are +communal. All joint-stock companies, whether for banking, trading, +or extensive works, are communes. They hold property in common, and +merge individual in general rights. The possession of land by +communes or companies is gradually extending, and it is by no means +improbable that the ideas which governed very remote times may, +like the communal joint-stock system, be applied more extensively +to landholding. + +It may not be unwise to review the grounds that we have been going +over, and to glance at the salient points. The ABORIGINAL +inhabitants of this island enjoyed the same rights as those in +other countries, of possessing themselves of land unowned and +unoccupied. The ROMANS conquered, and claimed all the rights the +natives possessed, and levied a tribute for the use of the lands. +Upon the retirement of the Romans, after an occupancy of about six +hundred years, the lands reverted to the aborigines, but they, +being unable to defend themselves, invited the SAXONS, the JUTES, +and the ANGLES, who reduced them to serfdom, and seized upon the +land; they acted as if it belonged to the body of the conquerors, +it was allotted to individuals by the FOLC-GEMOT or assembly of the +people, and a race of LIBERI HOMINES or FREEMEN arose, who paid no +rent, but performed service to the state; during their sway of +about six hundred years the institutions changed, and the monarch, +as representing the people, claimed the right of granting the +possession of land seized for treason by BOC or charter. The NORMAN +invasion found a large body of the Saxon landholders in armed +opposition to William, and when they were defeated, he seized upon +their land and gave it to his followers, and then arose the term +TERRA REGIS, "the land of the king," instead of the term FOLC-LAND, +"the land of the people;" but a large portion of the realm remained +in the hands of the LIBERI HOMINES or FREEMEN. The Norman barons +gave possession of part of their lands to their followers, hence +arose the vassals who paid rent to their lord by personal service, +while the FREEMEN held by service to the Crown. In the wars of the +PLANTAGENETS the FREEMEN seem to have disappeared, and vassalage +was substituted, the principal vassals being freeholders. The +descendants of the aborigines regained their freedom. The +possession of land was only given for life, and it was preceded by +homage to the Crown, or fealty to the lord, investiture following +the ceremony. The TUDOR sovereigns abolished livery and retainers, +but did not secure the rights of the men-at-arms or replace them in +their position of FREEMEN. The chief lords converted the payment of +rent by service into payment in money; this led to wholesale +evictions, and necessitated the establishment of the Poor Laws, The +STUARTS surrendered the remaining charges upon land: but on the +death of one sovereign, and the expulsion of another, the validity +of patents from the Crown became doubtful. The PRESENT system of +landholding is the outcome of the Tudor ideas. But the Crown has +never abandoned the claim asserted in the statute of Edward I., +that all land belongs to the sovereign as representing the people, +and that individuals HOLD but do not OWN it; and upon this sound +and legal principle the state takes land from one and gives it to +another, compensating for the loss arising from being dispossessed. + +I have now concluded my brief sketch of the facts which seemed to +me most important in tracing the history of LANDHOLDING IN ENGLAND, +and laid before you not only the most vital changes, but also the +principles which underlay them; and I shall have failed in +conveying the ideas of my own mind if I have not shown you that at +least from the Scandinavian or ANGLO-SAXON invasion, the ownership +of land rested either in the people, or the Crown as representing +the people: that individual proprietorship of land is not only +unknown, but repugnant to the principles of the British +Constitution; that the largest estate a subject can have is +tenancy-in-fee, and that it is a holding and not an owning of the +soil; and I cannot conceal from you the conviction which has +impressed my mind, after much study and some personal examination +of the state of proprietary occupants on the Continent, that the +best interests of the nation, both socially, morally, and +materially, will be promoted by a very large increase in the number +of tenants-in-fee; which can be attained by the extension of +principles of legistration now in active operation. All that is +necessary is to extend the provisions of the Land Clauses Act, +which apply to railways and such objects, to tenants in possession; +to make them "promoters" under that act; to treat their outlay for +the improvement of the soil and the greater PRODUCTION OF FOOD as a +public outlay; and thus to restore to England a class which +corresponds with the Peasent Proprietors of the Continent--the +FREEMAN or LIBERI HOMINES of ANGLO-SAXON times, whose rights were +solemnly guarenteed by the 55th William I., and whose existence +would be the glory of the country and the safeguard of its +institution. + + + + + +End of Project Gutenberg's Landholding In England, by Joseph Fisher + diff --git a/old/lndie10.zip b/old/lndie10.zip Binary files differnew file mode 100644 index 0000000..50bab42 --- /dev/null +++ b/old/lndie10.zip |